Wright v AAMI and Thompson

[2002] NSWSC 1263

CITATION:	Wright v AAMI & Thompson [2002] NSWSC 1263
FILE NUMBER(S):	SC 20228/98
HEARING DATE(S):	13 May, 14 May, 15 May, 16 May, 17 May 2002 23 September, 24 September, 25 September, 26 September, 27 September 2002, 1 October, 2 October, 3 October, 8 October 2002
JUDGMENT DATE:	20 December 2002
PARTIES :	Stephanie George Administrator of the Estate of the Late Mark Francis Wright v Australian Associated Motor Insurers Ltd (AAMI) & Anthony James Thompson
JUDGMENT OF:	Acting Justice Taylor at 1

COUNSEL :	Mr. Higgs SC Plaintiff Mr. Kostopolous (Jnr Counsel) Mr. Toomey Defendants Mr. Gow (Jnr Counsel)
SOLICITORS:	Dodaro Lawyers (P) McMahons National Lawyers (D)
CATCHWORDS:	Motor accident, negligence, identification of driver, application for leave to proceed pursuant to s. 52(4) Motor Accidents act 1988
CASES CITED:	Luxton v Vines 85 CLR 352 at 358 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
DECISION:	Grant leave to the plaintiff to proceed against an unidentified driver and Anthony Thompson. ; Judgment for the Defendants against the Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CIVIL LIST

Acting Justice Taylor

20 December 2002

20228/98 Stephanie George
Administrator of the Estate of the Late Mark Francis Wright
(Plaintiff)
v
Australian Associated Motor Insurers Ltd (AAMI)
(First Defendant)
&
Anthony James Thompson
(Second Defendant)

JUDGMENT

Introduction

The main issue, approach to piecing together the circumstances of the accident, uncontroversial facts, the application for leave to proceed.

1 By a third amended statement of claim the plaintiff sues the defendants for damages for negligence arising out of a motor vehicle accident, which occurred on Saturday 30 March when the late Mr. Wright’s Volkswagen Beetle sedan collided with a power pole whilst traveling along Bay Road in Fennel Bay. Mr. Wright received a hyperextension injury when thrown onto the roadway, which left him a C2/3 quadriplegic. He was 29 at the time of the accident. Barely able to communicate and with inevitable immobility he was hospitalised for five years. On discharge from the Ryde Rehabilitation Centre he resided with the plaintiff, except for multiple hospital admissions, until his death on Friday 10 May 2002, a few days before his case was fixed for hearing. Mr. Wright had no recollection of the accident. His blood alcohol reading shortly after the accident was 0.239.

2 The accident was caused by the negligence of the driver. The central issue in the case is to decide who that was. The evidence discloses the possibilities are Mr. Wright, Mr. Anthony Thompson, Mr. Brian Thompson or an unidentified person.

3 The time of the accident (about 11.24 pm) was deduced from ambulance records. It is not in dispute. This is an important uncontroversial fact. Piecing together what happened that day has been complicated by the quality of the recollections of those who could help. As there were a number of persons who could have been driving the vehicle, the lay evidence focused on reconstructing their movements during the day and the likelihood of each being in the vicinity of the accident when it happened. Fortunately, from a fact finding perspective, the scientific evidence has high probative value. The crash reconstruction and engineering experts were able to work from a reasonably firm set of assumptions. The expert evidence demonstrates that, more likely than not, there was one person in the vehicle at the time of the accident. In my opinion that was Mr. Wright.

4 A high point in the plaintiff’s case was an alleged observation by the deceased’s brother in law, Mr. Midwood, that he saw Mr. Wright shortly before the accident in the vehicle as a passenger. I have given careful consideration to his evidence and concluded that I cannot safely rely upon it.

5 Before discussing the evidence there are some matters to record. There is no dispute that Bay Road runs in an east-west direction. The accident occurred at a point about 100 metres west of the intersection of Bay Road and Quigley Road. The Volkswagen veered to the centre of the roadway and then back towards the footpath, struck the telegraph pole, spun in an anti-clockwise direction, mounted the footpath and traveled further east of the telegraph pole coming to rest 6 to 7 metres northeast of the telegraph pole and on the footpath. Mr. Wright was found towards the middle of the road east of the telegraph pole, probably by 6 or 7 metres.

6 Ownership and insurance are not in issue. Damages are agreed at $850,000.

7 When the case was called on for hearing on 13 May Senior Counsel announced that his client had died on 10 May. Stephanie George was appointed administrator ad litem of the estate of the late Mr. Wright on 13 May. The grant remains in force until determination of the proceedings.

8 On 17 May I granted leave to the plaintiff to join Anthony John Thompson also known as “Animal” as a party to the proceedings. This necessitated adjournment of the hearing. The evidence concluded in October.

9 The joinder also has the consequence that a further application for leave to proceed pursuant to s 52(4) of the Motor Accidents Act needs to be considered. The reasons for delay in respect of prior applications have been held to be full and satisfactory. The case was permitted to go forward to trial. I have previously given reasons for allowing the joinder. The need arose during the course of evidence. In my view the delay is fully explained. There has been no undue difficulty in the conduct of the case. The fact Anthony Thompson was not called to give evidence was not due to any insurmountable difficulty in locating him. Even if his whereabouts were not known prior to the trial it appears that he was in Sydney and available to give evidence during the trial. There is no matter of prejudice that has arisen and I have concluded that the delay did not make the chances of a fair trial unlikely. In respect of both Anthony Thompson and the unidentified driver the plaintiff should have leave to proceed pursuant to 52(4) of the Motor Accidents Act 1988.

10 In reaching that decision I have approached the issue according to the principles set out in the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and subsequent judgments of the Court of Appeal of NSW where the principles therein set out have been confirmed and applied to NSW cases - for example in the Zegarac (26 February 1998) case, The State Rail Authority v Gaudron (12 August 1997) and Bates v Endrey - Walker (30 July 1998).

11 The basic principles I bear in mind are as follows -

(1) Such applications involve the exercise of a judicial discretion applied according to the Motor Accidents Act

(2) the discretion is whether to grant an application, not a discretion to refuse it;

(3) the onus of proof rests on the applicant to establish that the granting of the extension of time is justified in the particular circumstances;

(4) the discretion should not be exercised in favour of the applicant where there will be “material prejudice” to the defendant, or where the delay has made the chances of a fair trial unlikely;

(5) proof of actual prejudice does not dictate the rejection of an application.

(6) the respective positions of each party are looked at by the court but it does not attempt to balance the actual circumstances and merits of the evidence of prejudice to a particular defendant.

(7) the ultimate issues to be determined is whether it is “just and reasonable” to grant the extension of time in the circumstances of this particular case.

12 I also bear in mind the four broad rationales for the enactment of limitation periods:

(1) as time goes by relevant evidence is likely to be lost;

(2) it may be oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to have passed;

(3) people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses particularly limited liability companies, have a significant interest in knowing that they have no liability beyond a definite period;

(4) the public interest requires that disputes be settled as quickly as possible.

Discussion of the Lay Evidence

13 Evidence of the lay witnesses discussed and considered, conclusions concerning the lay evidence.

14 Mr. Wright was not able to assist with the circumstances of the accident. His last memory before the accident was drinking at the Toronto Hotel. His next recollection was being in hospital.

15 As Mr. Midwood gave evidence that he saw Mr. Wright as a passenger in the Volkswagen shortly before the accident his evidence was of considerable importance in the reconstruction of events. I will now discuss his evidence and the reasons for not accepting him as a reliable witness. It was many years after the accident that he came forward.

16 One explanation for the delay was that Mr. Midwood fell out with Mr. Wright and would have nothing to do with him. The dispute concerned Mr. Wright’s son Daniel. Shortly after the accident, Mr. Midwood accepted responsibility for the care of the boy. He was very committed to doing this. Unfortunately conflict arose within the family as to the quality of Mr. Midwood’s care of the child. The Department of Community Services intervened. Mr. Midwood blamed the deceased for this. He said Mr. Wright asked him to look after the child not long after the accident and again at the John Hunter Hospital. Mr. Wright later “took his child off me”. Consequently, Mr. Midwood said, he would not talk to Mr. Wright. He said that he would have nothing to do with him because he had promised that he would never take the boy off him, and he did.

17 It was pointed out to Mr. Midwood that at that time Mr. Wright was in the John Hunter Hospital Mr. Wright could not speak. In answer to this he said, “he could point”. Mr. Midwood also said you could understand what he was trying to communicate by lip-reading. However, it became clear further in cross examination that the point at which Mr. Midwood became angry with the deceased was in fact more than two years after the accident and apparently triggered by the actions of a nurse who was associated with Mr. Wrights treatment in hospital. The inconsistencies in this evidence cast doubt over Mr. Midwood’s reliability as a witness.

18 Mr. Midwood said that he told Leone Convery that he knew Mark Wright was not driving the vehicle but he did not tell her about seeing him passing the BP garage. So far as he knew he was the only person who could give direct evidence that Mr. Wright was a passenger in the vehicle. He said he did not know that Mr. Wright was having the circumstances of the accident investigated and believed, at the time of the accident, and for the next seven years that no action was being taken.

19 Mr. Midwood knew that the deceased had a bad driving record. He wanted the keys or to know where they were to make sure Mr. Wright did not drive. Mr. Midwood agreed that after walking past the Volkswagen in the car park he had traveled 250 metres or so (about three and a half minutes in time) when that car passed him. On his version of events, during that time someone had obtained the keys, entered the car, driven off and caught up with him as he walked home.

20 On the 8 March 1999 when Mr. Midwood when giving evidence on the application for an extension of time he said:

I didn’t say anything at the time but I did tell Leone and probably things but there was that much confusion, Mark was flown to Sydney and we all just forgot about it. As for the case I never knew Mark was going for the case. I still thought he drove it because everyone else said it.

21 Explaining the inconsistency between this statement and his present evidence he said that he thought Mr. Wright might have swapped seats. In my view this is an unlikely explanation.

22 During the two-year period between the accident and the time he became angry with the deceased concerning the boy Daniel, Mr. Midwood saw Mr. Wright at the John Hunter Hospital on a number of occasions and once at Royal North Shore Hospital. His wife went to see Mr. Wright regularly for a substantial period of time.

23 Asked why he did not tell anyone, apart from his wife, that Mr. Wright was not driving, he said:

Since – like, this:
I have never ever, ever blamed anybody else for Mark except himself because I couldn’t get those keys. I went back into the pub to get those keys and I never found them. I never blamed nobody but myself. This is why I hid it all away.

24 He said that it was November 1998, when he learnt that Stephanie was taking proceedings, that he told his wife what he knew. Mr. Midwood acknowledged that Mr. Wright was in a desperate position after the accident. He said that he and others had no money to support him. He made a statement in 1998. Asked again why he did not do this seven and a half years before he said “because I didn’t think it was any of my business”. In the context of Mr. Midwood’s concern for the child and the limited resources to provide support to Mr. Wright, this answer did not ring true.

25 He was pressed about the delay in making the statement, during a period which created a “huge gap while Mark had no money and no proper care”. Mr. Midwood said “because we all thought he was going to die. We all thought he was going to die. We were all arguing and bluing over him. I told people that I saw Mark that night at the pub”.

26 In terms, one explanation for not coming forward was that he thought that Mr. Wright was going to die. He also explained the delay by saying “because he kicked on and because I found out he was going for a claim”. Mr. Midwood conceded that Mr. Wright could only prosecute a claim with the benefit of his evidence. It is unlikely that the “bluing and arguing” would preclude the witness from not telling what he knew for a period of seven and a half years. When this was suggested to him he said, “they are still bluing and arguing today”. His answer was not persuasive. I do not accept it.

27 In Mr. Midwoods affidavit of the 22 December 1998, on the application for an extension of time, he deposed that he said to Leone Convery “Mark was not driving, I saw his car pass me near the BP garage and saw he was in the passenger seat. There was somebody else driving but I don’t know who that was’. In these proceedings Mr. Midwood said that he “must have told her”.

28 He agreed that the accident happened a few hundred metres away from Donna’s house and was on the direct route between the Toronto Hotel and her home.

29 Mr. Midwood said that he heard that someone else had received injuries in the accident. He said that he started to blame everybody.

30 Asked again why he did not tell anyone apart from Leone (leaving aside John Simpson), he said “because I couldn’t prove it”. By this he meant that Mr. Wright could have swapped seats down the road. This evidence lacks credibility as the vehicle had already being driven two kilometers and there was no reason for change in driver particularly in Mr. Wright’s state of inebriation.

31 Mr. Midwood said that he did not know a police investigation was going on after the accident. Shortly after he agreed that that was nonsense. He then offered the explanation:

I don’t know why. Like I said yesterday, I don’t know why I never went to the police, but a lot of it is that I blamed myself. I never blamed anybody else, because I couldn’t get those keys, I went back to the pub to get those keys.

32 I do not accept this evidence. By coming forward and saying that he had seen Mr. Wright as a passenger he would have exculpated him and eased his own conscience. He said that he felt guilty about the matter. If someone else drove Mr. Wright home then that should have relieved his guilt at least to some extent. He did say that Mr. Wright told him Donna had the keys and that she had been drinking. This concerned him. He said that when he went back to get the keys he was side tracked. He himself could not drive because he thought he would have been over the legal limit. He was not sure if Donna could drive. It did not occur to him that she might. He said he would try to obtain the keys from Donna and take them home with him. There has never been any suggestion that Donna drove the vehicle from the hotel. He said that he was never asked how the keys came to be in the Volkswagen.

33 When he gave evidence Mr. Midwood could not remember seeing a taxi cab a short distance behind the Volkswagen. This was contrary to paragraph 33 of his affidavit of 22 December 1998 in which he deposed that behind the Volkswagen there was a taxi driven by Kelvin from Toronto.

34 During his evidence Mr. Midwood referred to the person “Animal”. He did not know his name but “thought he was a little short bloke”.

35 In his affidavit of 22 December 1998, Mr. Midwood deposed that “Mark’s hand was out the window on the left hand side of the car”. In his evidence at the hearing he said the window of the Volkswagen was open. However, the police photographs, taken at the scene, clearly show that the window on the left side of the car was closed. Although there was the opportunity to wind up the window, the fact that the window was found closed is consistent with the defendant’s case.

36 The conflicts within Mr. Midwood’s evidence, the very long period that elapsed before he came forward, and the fact that some of his evidence was inherently unlikely, lead me to conclude that I cannot safely rely on the version of events he gave in evidence. In doing so I recognize the supporting evidence of his wife.

37 There were two eyewitnesses to the collision, Mrs. Leanne White (then Ms Caldwell) and her then boyfriend, Mr. Mark Anderson. They both gave very good evidence as to what they saw. Between 11 and 11.30 pm on the night 30 March 1991 Mrs. White said she was drove Mr. Anderson’s car along Bay Road, Fennel Bay. There is a slight incline. When her vehicle was about half way up the hill, she saw a car come over the top of the hill towards her. She took notice of it because it seemed to be going quite quickly. It went past her vehicle and Mr. Anderson turned around in his seat. She looked in the rear vision mirror and within a matter of seconds Mr. Anderson told her to stop because the other car had lost control. She did that and then turned her vehicle around. She saw the other vehicle stopped on the side of the road and saw someone lying in the centre of the road. She came to a halt in the centre of the road. She put her lights on high beam and operated the hazard lights. She and Mr. Anderson left their car. She remembers running over to the Volkswagen, “to check there was nobody in side the car because we could see somebody on the road just beyond it. There was nobody inside the car so we ran over to the fellow lying on the ground to see.” She thought that the body was just short of the centre of the road.

38 Mrs. White said that the nearby paddock was dark. Beyond the footpath there was a ditch just before the paddock. She went to the ditch to see if there was anybody there. It was probably four or five minutes before she looked in the ditch. In my view it is inherently unlikely that, even with the poor lighting conditions, that a second person in the vehicle would have been able to gather themselves together, unbutton the seat belt and leave the area without being observed. That person would have of course been someone who, moments before, was driving in a very erratic way.

39 Mrs. White and Mr. Anderson stayed in the area until the ambulance left. As they were sitting on the paddock side of the road just beyond the Volkswagen, a man approached the ambulance. He came from the direction of Quigley Street. She was too far away to have a good look at him. She observed that he was stumbling. She heard him yelling quite loudly as he walked around the ambulance “I wasn’t driving the car”.

40 In cross examination Mrs. White said that after she stopped and completed a U turn she was no more than ten metres from the Volkswagen. Her evidence was that she checked around the car and had a look in the ditch near the car before moving over to where the man was lying on the road. Asked about her recollection as to where the man had come from she said that he was east of the ambulance on the south side. Whilst the ambulance men were attending to Mr. Wright a vehicle arrived with some women in it. One of the women became hysterical.

41 She was not able to describe the man who was about twenty or thirty metres away and could not identify him.

42 Asked to clarify her movements after leaving her car she said she walked from the driver’s side of her vehicle then in front of it and across to the Volkswagen. She could not say what Mr. Anderson was doing. Her vehicle was stopped about three metres from Mr. Wright. She was clear that she checked the car first.

43 Mr. Mark Anderson gave evidence. He is a real estate agent. In 1991 he was an apprentice fitter and turner with BHP Newcastle. On the evening of the 30 March he was at his parents house with his then girlfriend Leanne Caldwell. At about 11pm they left the house in Blandford Road in his car. Ms. Caldwell was driving. They turned into Bay Road and drove west toward the crest of a hill. About a third of the way up the hill he saw a white or cream Volkswagen come over the hill swerving. He said they pulled over to the side of the road and stopped on the left hand side to avoid it. He watched the car all the way down the hill. As it passed he looked back through the windscreen and saw it hit the pole. His vehicle was a 1987 Commodore. He saw the car hit the pole “it just sort of flung around and I saw something fly out which we went back and had a look at and it was a man on the road”. He had the vehicle under observation from the time it came over the hill until the collision. Ms. Caldwell turned the vehicle straight around and stopped a few metres from the Volkswagen. Mr. Anderson alighted from his car and ran straight to the man on the road. At that point he did not look in the Volkswagen because the man was seriously injured. He was asked:

Q. Did you see whether there were two people in the Volkswagen or one person or some other number.

A. I only saw one person.

44 It was about five minutes before he looked into the Volkswagen. He did not see anyone in the park or the vicinity.

45 Mr. Anderson was interviewed by Sergeant Patterson at the scene. The police officer’s notes of the conversation are as follows:

I was travelling along Bay Road. I saw the other car coming the other way. He was right over near the gutter. The car then spun and I saw something get thrown out. I pulled my car up and came back and saw the bloke lying in the middle of the road.

Q. When the car was coming toward you, could you see how many people were in the car.
A. I couldn’t really see. It only looked like the driver.
Q. When you went back to the car, did you see anyone else around the car.
A. No, there was no one else. There was only the bloke lying on the road.
Q. Could you tell me what speed the other car was travelling at the time.
A. No, I saw the right over near the gutter, then it started to spin out.

46 When cross examined Mr. Anderson said he could not be sure if there were more people in the Volkswagen. His evidence as to this recollection was important. He agreed that he said in a statement, given to an investigator on 28 October 1991, “when the Volkswagen first passed us I could not see how many persons were in it”.

He was asked:

Q. Isn’t this the situation, that you really couldn’t see, wouldn’t that be a fair way of describing your evidence, you really could not see how many people were in the car?
A. Well, I know there wasn’t – I couldn’t see two heads. I could only see one head in the car.

47 He also said that he assumed that there was one person in the car because he only saw one body. He disagreed that the car went so quickly that he could not see how many people were in the vehicle. He then gave evidence, which in my view, puts in a nutshell the nature of his observation.

Q. All you can say is that the view that you had of the Volkswagen as it went by was such that there was at least one person in the car but there may have been more?

A. If they were, they were laying down in the seat or something ------

48 In other words, he considered that he had a fair opportunity to make an assessment of the number of people in the vehicle and only saw one person. This conclusion is reinforced by further evidence he gave in cross examination.

Q. In response to the questions that I have asked of you, is it a fair summary of your evidence that, as the car was coming towards you, you couldn’t really see how many people were in the car but it only looked like the driver?

A. Yes.

Q. And there may have been someone else there out of view?

A. By out of view, they would have had to have had been laying down or – yeah.

He also gave the somewhat ambiguous evidence:

Q. It took you some time to get to the Volkswagen afterwards as you have recounted?

A. Well, I had no concern about looking for anyone else.

49 He was an excellent witness answering questions responsively and giving a good insight into what he experienced. He has no axe to grind. The only inroad, if it can be called that, into his evidence is that he conceded the logical possibility there were others in the vehicle but, in his view, they would have to been obscured because the person was lying down. I accept Mr. Anderson as a witness of truth giving reliable observation evidence.

50 The man Mrs. Wight saw was possibly Mr. Anthony Thompson or his brother Mr. Brian Thompson. Each was referred to in the evidence as having the nickname” Animal”. This is because of some confusion between them and the fact that some witnesses did not know the given of the person they were referring to.

51 Brian Thompson gave evidence. He lives at Stockton. He remembers the day of the accident. He said he was at the RSL drinking with his brother. At some point he lost contact with him and realised he was not there. As he was out of money he walked home to at his mother’s place in Quigley Street where he was living at the time. He walked across the Fennell Bay Bridge and around the lake and up the path to Bay Road. When he came to its intersection with Quigley road he saw a car and a body on the road. He walked up to see if he could be of assistance. There was a lady there. Some other people came. He cannot remember seeing anyone else when he first saw the accident scene. An ambulance arrived and he was asked by an officer to hold a drip. The police spoke to him. He cannot remember saying, “I wasn’t driving the car”. He did not see his brother until the next day. At the time he noticed the accident he did not see another vehicle on the road facing the scene with its headlights on. He said that he had been at the Toronto RSL from around 11am or midday drinking schooners of full strength beer.

52 He remembered an insurance investigator coming to his house about five months after the accident and asking him questions. He did not use a statement to refresh his memory. He signed a statement but he is not able to read. At the time of the accident his brother was living at Quigley Street as well. Their mother has since died. He disagreed with the suggestion that his brother had been drinking at the Toronto Hotel from about midday until 9pm. He said he was pretty positive that he was with him. When giving evidence he was not sure whether his brother was in Sydney. He had seen him recently in the defendant’s senior counsel’s chambers. When he arrived home before midnight he did not discuss the accident with his mother. He went to bed and learnt that his brother had been taken to hospital the next day. He remembers his brother going to Mullumbimby. He does not remember when he went up there and he had no contact with him.

53 There is no reason not accept what Mr. Thompson had to say. He appeared as a witness doing his best to tell the truth.

54 Mrs. Leone Midwood gave evidence. She is married to Gary Midwood and is the deceased’s sister. She first heard of the accident about 8am on 31 March. She went straight to the John Hunter Hospital. Over the next few months she spent a great deal of time with her brother in different hospitals.

55 She remembered a conversation with her husband about a week or so after the accident. She said:

He said that he had seen Mark at the pub the previous night and that Mark had had a few too many and that he had been taken to the car and Gary went out to check on him and he was asleep in the passengers side. Gary said he went back inside and had a few more drinks and when he was leaving he went back outside to Mark to check he was all right and everything and to check to see if he had the keys.

She also said:
He said he went back outside to check Mark before he went home and make sure Mark did not have any keys on him so he could not drive because he had had too many and then Gary proceeded to walk home. He was walking past the BP garage at Toronto and Marks car came past him and he noticed Mark on the passengers side of the car and sung out to him “Mark” and Mark sort of lifted his arm to wave to him.

56 Apparently Mr. Wright’s condition was such that she did not know whether he was going to live or die for a month. In her view someone else was responsible for the accident. It did not occur to her that a claim would be made. She cannot remember whether before 1998 she told anyone that her brother was not the driver. She did not tell her brother Norrie. She understood he was taking care of financial matters. She said that she did not tell him because she did not know there was a court case pending.

57 In assessing Mr. Midwood’s evidence I took into account the value of the supporting evidence from his wife. It is consistent with his version. I have some reservation about Mrs. Midwood’s evidence. It does seem unlikely that she would not have told her brother about her husband’s important observation.

58 Sally-Anne Warren gave evidence. She had been at the Toronto Hotel with Mr. Wright, Donna Convery, Jason Vecera, another friend of Mr. Wrights Gary and a man she did not know very well whose name was Animal - “a short bald fellow covered with tattoos”. As far as she knew Animal lived in Quigley Road in Bolton Point.

59 She remembered that Mark Wright drove to the hotel. She said that he was “drinking quite a bit”. Donna Convery became concerned so she took the keys from the car. She said “me and Donna removed them from the ignition and placed them in the drivers side pocket of the car”. At that time Mr. Wright was not in the car. When in the hotel she remembers Mr. Wright saying that he was going to have a sleep. She did not see him after that. During the course of the night and after removing the keys Animal was talking about how people were to go home. She said that she and Donna indicated they were going home by taxi. She said after that, “I didn’t see him until I got to the accident”. Ms Warren and Donna Convery caught a taxi. She did not know how long they had to wait for a taxi. As they drove down Bay Road they came upon the accident scene. She said that she saw Animal at the scene of the accident. She said:

“Yes Animal was at the scene. Where Mark’s car actually was on the footpath there was a gully and he was standing over there. I did see him but I didn’t speak to him.”

60 He was about 20 feet away. At the time of the accident, Ms. Warren was fifteen years of age. She thought she had six beers. She conceded that she assumed the man she saw was the same man as at the hotel.

61 She agreed that at the hotel Mr. Wright was talking about driving his car home and that she and Donna Convery became concerned about that. She was sure that Mr. Wright actually drove to the hotel and left the keys in the ignition. She was sure that Ms. Convery did not drive. Ms. Warren said it was possible that Jason Vecera, Ms. Converys ex-husband was flirting with her at the hotel and that Mark Wright went out of the hotel. She thinks that between half an hour and an hour passed after they noticed the car had gone and actually leaving the hotel. She first made a statement about these matters on the 3 December 1997. She was aware that there are two Thompson brothers. She did not know their names.

62 Ms Warren was fifteen at the time of the accident. She had been drinking for 4 hours and consumed about six beers. She said she was affected by alcohol.

63 Norrie John Wright gave evidence. He is the deceased’s brother. He learnt of the accident about two days after it happened. He saw the Volkswagen at the police station and observed the left hand side passenger door was swung wide open whereas the right hand side was in the normal position. He noticed the left hand (passenger) door restraint was broken. Mr. Wright said that at the time of the accident, his brother was living with a friend at “Stony Creek, Venetia Road or something like that”. He held that opinion because he picked his brother’s clothes up about three or four weeks after the accident. Also there was some of his personal paperwork there.

64 He saw his brother in hospital. He could not see significant injuries to him. He noticed some scratches. He was lying on his back with his head rested on a cradle. He said he mainly saw cuts on his legs and on his chin. He agreed in cross examination that at the time of the accident his brother may have been staying with Donna at 11 Binkirra Place, Bolton Point.

The Barbeque at Bill Kearns Place

65 William Kearns gave evidence. He lives at 17 Threlkeld Drive Bolton Point. He has known Tony Thompson for sixteen or seventeen years. He remembers the day when Mr. Thompson was taken to hospital by ambulance from his home. That evening he had a few visitors around for a barbeque in the back yard. At one point Mr. Thompson arrived at his house, he did not notice anything different about him but said he had a few drinks. He said that Mr. Thompson came into the lounge room from the kitchen with some beer from the fridge. He was rubbing his chest. He turned a grey colour. He sat down but became worse. He also said he had a pain in the chest. Mr. Kearns remembers saying “you look a terrible colour”. Mr. Thompson said the pain was intense in his chest and asked Mr. Kearns to drive him to hospital. He said he could not because he had too much to drink so he phoned an ambulance. He was asked:

Q. How long would you say before Mr. Thompson complained to you about the pain and you noticed that he had gone grey, was it that he had arrived at your house?

A. Well we probably had three or four stubbies of beer so it would be – well, I don’t know for sure but it would be well over an hour or longer.

66 In response to questions testing his recollection about how long Mr. Thompson was at his home before he started complaining about feeling ill, Mr. Kearns said that Tony Thompson was in a party mood. “We were dancing and fooling around and having a good few drinks, but as for the length of time, no, I’m not sure. No. No”. It was suggested to him that, as stated by Mr. Thompson in exhibit J, that he was only there for a short period, ten to fifteen minutes, before he felt ill. His recollection was that people who were invited to the barbeque were there by five o clock. Mr. Thompson was not invited but it was usual for people to drop in. He said everybody was welcome. He said that people were possibly eating until about eight o clock. He cannot remember precisely how many people were there but it would probably be at least ten. There was fire outside for warmth. Eventually everyone went inside. He was unsure as to whether that would be ten to ten thirty. He cannot remember how long it was after they went inside before Mr. Thompson arrived. He said he had been drinking VB stubbies from about 1pm at the rate of at least two stubbies an hour. He only drank alcohol but some people were smoking marijuana. Somewhat contrary to his pervious evidence Mr. Kearns said that when Mr. Thompson arrived at the home the only people in the lounge room were himself and Wayne Costello He thought his wife had gone upstairs. He said they were playing music and drinking. He was shown Mr. Thompson’s statement to the effect that he was at Mr. Kearns place for about ten to fifteen minutes before complaining of pain. When asked whether the period could have been shorter than he said earlier in his evidence his answer was “well, I suppose so, yeah. Maybe”.

67 In re-examination he said that he had a specific memory of Mr. Thompson having three or four stubbies whilst at his house. Mr. Kearns counted them for the purposes of saying to him in effect “your shout next time”.

68 He thought that it would take him about seven or eight minutes to walk from the scene of the accident to his place.

69 Wayne Costello, who is known by the nickname of Bluey, gave evidence. He was at the barbeque at Bill Kearns’ place. He is presently an inmate at Junee Correctional Centre serving a sentence for driving whilst cancelled, shoplifting and failing to appear in court. He remembers the day of the accident. At that time he was living with his parents at Bolton Point. He had known Anthony and Brian Thompson as friends for about three years. At around five o clock on 30 March he went to Bill Kearns place at the corner of Tarana Place and Threlkeld Drive for a barbeque. There were four or five other people there. His evidence is that Anthony Thompson arrived about half past six or seven. He remembers having a chat to Mr. Thompson. He did not notice any injuries on Mr. Thompson. He thought that Mr. Thompson was at the premises for about four or five hours. At one point Mr. Kearns told him that Mr. Thompson was sick. He went to Mr. Thompsons mothers place in Quigley Road. He ran down there. It took about five minutes. He returned with one of Mr. Thompson’s relatives. By that time the ambulance had arrived. It was about a year ago a private investigator asked him to recall the events of that evening. He said that Mr. Tony Thompson had short hair and was covered in tattoos and had a beard. He was easily recognisable. The last time he saw him was about six months ago. He remembers the barbeque also because it was the last one that he attended at the Kearns home. He has not discussed the events of the night of the accident with Tony Thompson. He learnt of the accident about six months after it occurred. Mr. Costello’s recollection that Mr. Tony Thompson was at Bill Kearns house for about three hours before nine thirty to nine forty five pm was tested. He was very firm in his evidence. He has no axe to grind and gave the impression that he was doing his best to tell the truth. However, he fixed the time by tying it in with the usual time for the evening meal.

70 He remembers that Mr. Tony Thompson said that he did not feel well. He said a number of times the time Mr. Thompson arrived at Bill Kearns house at nine thirty to nine forty five was because that was the time that people would have a barbeque.

71 The ambulance report records Mr. Thompson as experiencing a sharp stabbing pain. It had been ongoing but there was a sudden onset. It notes suspected pneumonia. Mr. Thompson was taken to John Hunter Hospital from 17 Threlkeld Parade Bolton point, Mr. Kearns’ address.

72 The plaintiff relies on coincidence that shortly after the accident happened Anthony Thompson complained of chest pain at Mr. Kearn’s house. It is contended this is consistent with him being involved in the accident. The evidence of Mr. Costello and Mr. Kearns suggests that whilst it is difficult to be precise how long Anthony Thompson was at Mr. Kearns place it was a lot longer than the ten to fifteen minutes Mr. Thompson suggested himself in his statement. Dr Giles Taylor who treated him ten days later diagnosed a chest infection, probably pleurisy. This was consistent with the ambulance records. There was no record of traumatic injury. This evidence supports the defendant’s case that Anthony Thompson was not at the scene of the accident. Rather it was his brother Brian Thompson that arrived on the scene.

Summary of Conclusions from the Lay Evidence

73 In my opinion the events leading up to the accident and immediately afterwards are as follows. Mr. Wright walked to and entered his car. Donna Convery and Sally-Anne Warren decided to catch a taxi home. They went outside the hotel and waited. They noticed as they left the hotel that the Volkswagen was not there. Mr. Anthony Thompson left the hotel and walked towards Quigley Street. Mr. Midford also walked home. Ms Convery and Ms Warren hailed the taxi sometime after the two men left. A short time later they came upon the scene of the accident. Mr. Anthony Thompson was past the accident scene by then. Mr. Brian Thompson was at the scene before the ambulance arrived having walked from the RSL Club. He said apparently to no one in particular “I was not driving”. When Donna Convery and Ms Warren arrived the ambulance was at the scene. It would be impossible for Mr. Anthony Thompson to have been there after the ambulance arrived because of the timing of the call to the ambulance station for his assistance.

74 I have separately considered the scientific evidence. In my opinion it supports my conclusions on the lay evidence. The two strands of evidence have satisfied me that Mr. Wright was the driver of the Volkswagen. I will turn now to the scientific evidence.

The Scientific Evidence
The scientific evidence discussed, findings on the scientific and lay evidence

75 The defendant’s experts held relevantly stronger qualifications than the plaintiff’s experts both academically and in experience. Throughout a very comprehensive cross examination Mr. Griffiths and Mr. Stuart - Smith demonstrated persuasively, in their response to questions and by the use of a model upon a scale plan, the likely movement of the Volkswagen and any occupants within it in the collision. The experts qualified by the plaintiff pointed to Mr. Wright being ejected through the passenger’s side door. The experts qualified by the defendants pointed to Mr. Wright being ejected through the driver’s side door. The defendants’ experts showed the plaintiff’s expert analysis as sometimes weak and incorrect. At the end of the day the choice for a lay decision maker was not difficult.

76 Assume Mr. Wright was sitting in the passengers seat unrestrained, either by not wearing a seatbelt or the strap parting on impact. At first blush the fact that the Volkswagen hit the pole in the vicinity of the driver’s door with a sideways component to its movement and rotated in an anticlockwise direction would indicate that a centrifugal force would throw Mr. Wright out of the passengers seat.

77 The forces upon any occupant were, however, largely generated by the velocity change on impact. Assume this was in the order of 30 kmh an average male of 75 kg would experience an apparent body weight of 1.3 tonnes. This is a very strong force. The forces immediately after the impact were therefore at their highest; some ten to twenty times higher than at any other time between collision and the vehicle coming to rest.

78 Importantly, the defendants’ experts demonstrated that any occupants would continue in the direction of travel on impact, that is sideways to the driver’s door. As these forces were so much higher than the rotational forces they were the “most available forces” for ejection. Mr. Griffiths and Mr. Stuart - Smith were of one mind about this. Mr. Griffiths stated in his 23 July 2002 report that the “most probable/almost certain time for ejection would have been during the vehicle’s major velocity change as a result impact with the solid object of the power pole”. Importantly, if there were more than one occupant in the vehicle the dominant forces would have driven them towards the driver’s door. The defendants’ experts demonstrated by calculation in evidence that a person could travel, after impact with the drivers door, to the centre of the roadway without being run over by the rotating vehicle.

79 Mr. Mark Sculthorpe of Forensic Accident Investigation & Reconstruction Pty Ltd (FAIR), qualified by the plaintiff, gave expert evidence reconstructing the circumstances of the accident. His service in the NSW Police included various driving and training courses. He underwent an accident investigation course in 1989. He has some training in traffic accident reconstruction with the North Western University of Chicago Illinois. He does not have any tertiary education at university level in engineering. He was a forthright witness with clear opinions and obviously a very conscientious traffic investigator. However, in this case I have concluded the factors that determine the dynamics of this collision are best understood by the application of principals of physics. His opinion, which I will discuss shortly, applies incorrect physical principles and his argument as to the likely scenarios whilst logical in itself is not supportable.

80 Mr. Sculthorpe was firmly of the opinion that Mr. Wright was not the driver of the Volkswagen and was seated in its near side front passenger seat when it was involved in the collision.

81 In my opinion Mr. Sculthorpe does not have the necessary qualifications for his evidence to be treated as having weight in a case such as this, which involves complex forces, which can only be understood by the application of high level theoretical physics.

82 Mr. Kiernan, also qualified by the plaintiff, is a civil engineer whose speciality encompasses the strength of structures and their ability to withstand stress; on the other hand Mr. Stuart-Smith and Mr. Griffiths qualified by the defendant are both mechanical engineers with high qualifications and extensive experience in accident reconstruction and associated areas of learning.

83 Mr. Kiernan’s evidence amounts to an opinion that it is possible that a person, who was a passenger in the vehicle, could have been ejected through the passenger’s doorway. It is plain that he is talking about bare possibilities without having done the detailed analysis of the crash and its dynamics, which was evident in the opinions expressed by Mr. Stuart-Smith and Mr. Griffiths. Mr. Kiernan believes each of four scenarios is “possible”. More is needed for proof. The circumstances must give rise to a “reasonable and definite inference” with “a balance of probabilities in favour of the conclusion”. See Luxton v Vines 85 CLR 352 at 358.

84 Mr. Stuart-Smith and Mr. Griffiths were both of the opinion that no forces could have been generated in the accident and its aftermath which could have resulted in a person being ejected from the car through the passenger’s door so as to end up where the plaintiff in this case undoubtedly did – that is, in the middle of the road diagonally south-east of the pole. Further, during the rotation, a person could exit the vehicle from the passenger doorway but would do so with no momentum and would be run over by the rotating vehicle.

85 Mr. Griffiths strongly expressed the view that no forces could be shown to be operating in the accident and its aftermath, indeed could operate in that context, which could result in what was contended for on behalf of the plaintiff. But Mr. Griffiths added a further crucial consideration, relying on his high qualifications in biomedics, that in his view the injuries suffered by the plaintiff could only have been suffered when being ejected from the driver’s side of the vehicle at or immediately after impact.

86 I have therefore concluded that the conclusions of the consulting traffic engineer Mr. Stuart-Smith are supported by the evidence and his analysis of the dynamics of the collision. Accordingly I make the following findings based on the scientific evidence.

1. The angle of impact of the VW is not know precisely, but was close to side-on, possibly with a slight frontal component.

2. Following impact, the Volkswagen rotated and slid across the pole, initially moving rearward as it rotated anticlockwise about its centre of mass. The VW significantly increased its anticlockwise rotation as it spun over 360 degrees before coming to rest around 12 m from the pole.

3. At the time of the pole impact, vehicle to occupant forces would have been greatest. Any occupants would have undergone a violent relative movement to the right or front right within the vehicle.

4. On impact, an unrestrained driver could have been ejected through the driver’s door, and been deflected by the door onto the road.

5. On impact, an unrestrained passenger (if present) would have been caught within the vehicle, either beside the driver, or against the gearstick and dashboard. (Ejection through the driver’s door would have been unlikely).

6. During the rotational movement between the poke and kerb, any occupants would have been subject to inertial forces towards the front and right side of the interior of the VW.

7. An unrestrained driver, not fully ejected at impact, could have been ejected out the driver’s door during post-impact rotation, and could have travelled towards the centre of the road.

8. An unrestrained passenger (if present) who had been subject to the initial impact would not have been ejected during the subsequent rotation, but forced against the steering wheel and dashboard. Should an unrestrained passenger have managed to leave by the passenger door (against the prevailing inertial forces), they would most likely have been run over.

9. The reports Mr. Keirnan, Mr. Henderson and Mr. Sculthorpe, prepared on behalf or Mr. Wright , appeared to incorrectly interpret the direction of forces within the rotating VW. Dr. Henderson’s report in relation to Mr. Wrights’ injuries better supported the view that Mr. Wright was the driver, rather than a passenger. Mr. Sculthorpe’s conclusions were not based on conventional physics concepts.

10. Based on the crash dynamics determined from Police photographs, vehicle damage, and the principles of physics, Mr. Wright must have been an unrestrained driver, and most likely ejected either at the time of impact and deflected onto the road, or ejected during rotation. There are no other reasonable alternative paths for Mr. Wright to have been ejected as either driver or passenger.

87 In my opinion, based on the scientific and lay evidence, Mr. Wright was the driver of the Volkswagen when it collided with the power pole. His negligent driving caused the accident. The defendants are entitled to judgment.

88 I will order that the plaintiff pay the defendants’ costs of the proceedings.

89 Orders

1. Grant leave to the plaintiff pursuant to s 52(4) of the Motor Accidents Act 1988 to proceed against an unidentified driver and Mr. Anthony Thompson in respect of a motor vehicle accident which occurred at Fennell Bay about 11.24pm on 30 March 1991.

2. Judgment for the defendants against the plaintiff in the proceedings.

3. The plaintiff to pay the defendants’ costs of the proceedings.

Last Modified: 02/06/2003