John Paul Folino v Nrma Insurance Limited [1994] ACTSC 50 (31 May 1994)

SUPREME COURT OF THE ACT

JOHN PAUL FOLINO v N.R.M.A. INSURANCE LIMITED
No. SC655 of 1992
Number of pages - 19
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Motor Vehicle Accident - Whether plaintiff passenger in or driver of vehicle - No issue of principle

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Chest injuries - Fractured femur - No issue of principle.

HEARING

CANBERRA, 16-19 May 1994
31:5:1994

Counsel for the Plaintiff: Mr G Lunney

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr L Morris QC and Mr M McDonogh

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the Defendant.
2. The Plaintiff to pay the Defendant's costs.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 27 October 1990.

2. The plaintiff is a single man born on 23 May 1969, and at the time of the accident was working in a temporary contract position in the Department of Defence as a Clerk, at ASO 1 level. He was in excellent health and both interested and active in a variety of sports.

3. His intention was to continue in a series of temporary contract jobs in the Public Service, while pursuing part time study.

4. He was enrolled in a Fitness Leaders Course at TAFE, and intended to pursue further study, to qualify himself for work involving sport and young people. He and a number of his friends were also interested in karate.

5. One such friend was Mr Gavin Smith. On 26 October 1990 he came to stay overnight with the plaintiff at his home in Evatt. They were both to attend a bachelor's party the following evening for a friend who was about to be married.

6. On the afternoon of 27 October Gavin Smith drove the plaintiff to his own home, where he picked up what was probably a bag with clothing in it, and then drove him to the party at the home of another friend, Brad Huckstepp, in Lendon Place, MacGregor. The car that Gavin Smith drove was a white Holden Torana sedan.

7. They arrived at the party at about 4.00pm. Beer was available from a keg, with soft drinks and some food.

8. During the evening the plaintiff and some others left the party to get more kegs of beer. They returned and he continued to drink.

9. At about 9.00pm a number of the people at the party started to leave. Some arranged to meet at about 10.00pm in Civic, to continue celebrations there. The circumstances of the plaintiff's leaving must be examined in some detail later. But the plaintiff and Gavin Smith left together in Gavin Smith's car.

10. A short time later, that vehicle crossed the median strip in Ginninderra Drive at an oblique angle, travelling in an Easterly direction. It collided with a Ford Laser which was travelling in the westbound carriageway. It then continued on across that carriageway, and came to rest on its near side against a small tree about 10 metres of the Southern side of Ginninderra Drive.

11. Mr Smith was killed in the impact. The plaintiff was unconscious. The rescue workers had to cut the roof off the Torana to release him. He was taken by ambulance to Royal Canberra Hospital; where he recovered consciousness in the intensive care ward. He could not then, nor can he now, remember the circumstances of the accident.

12. His case is that he was the passenger in the Torana at the time of the accident. The defendant's case is that he was the driver. There is no contest about his injuries.

13. On admission to hospital he had numerous facial lacerations and a laceration on the scalp. He was in respiratory distress, and X-rays revealed a right pneumothorax, which was drained. There was also a left pulmonary contusion. His principal injury was a compound fracture of the left femur. There were puncture wounds above the knee, and X-rays showed that the fracture was extremely complex. The shaft of the femur was not only fragmented in places, especially at the knee joint, but also split vertically.

14. Dr Stubbs, orthopedic surgeon, operated that evening to clean the wounds, and to reduce the fractures. Screws were used to reduce the fractures in the knee joint, and a pin was inserted in the tibia. The scalp and facial lacerations were sutured, and he was placed in traction in a Thomas splint.

15. When he recovered consciousness he was in severe pain. He had difficulty breathing, and was intubated for a time.

16. He was returned to theatre on 2 November 1990, for secondary closure of the leg wounds. A plaster of Paris bandage was applied.

17. On 9 November a Steinham pin was placed in the femur to achieve traction on the fracture.

18. On 26 November 1990 another operation was performed, to correct a posterior angulation at the fracture site.

19. By 12 December 1990 Dr Stubbs noted good callous formation. He was placed in a cast brace, and began to become mobile. He was mobile on crutches by 20 December 1990, and was discharged from hospital shortly afterwards.

20. He had lost over 15 kilograms in weight. He felt very weak. His leg ached very much. Some of his teeth had been damaged.

21. Within a month of his discharge his left crutch slipped on some wet tiles, and he fell heavily, breaking his leg again. He was readmitted to hospital. He was discharged again on 24 January 1991.

22. Eventually the fracture went on to solid union. Meanwhile he needed a great deal of help at home, from his mother and friends. He underwent physiotherapy. Because of the site and nature of the fracture he had a limited range of knee movement.

23. Dr Stubbs was unwell, and the plaintiff came under the care of Dr McNicol in early 1992. Arthroscopy showed extensive adhesions within the joint. He was readmitted to hospital on 4 June 1992 for a further operation to mobilise the knee joint. There was further physiotherapy, which, together with the operation, improved the knee mobility considerably.

24. The operation involved a large opening of the leg, to enable the muscles to be adjusted. He suffered a great deal of pain as he recovered, and has been left with a large scar.

25. He was discharged again on crutches, and again needed assistance in his ordinary activities at home.

26. It was August 1992 before he was able to discontinue using crutches. By Christmas 1992 his leg was a lot stronger, but still very painful.

27. During 1993 he continued with physiotherapy and home exercises to strengthen and mobilise the leg. He began to be able to care for himself. He began swimming and, gradually, bike riding.

28. In August 1993 he obtained employment as a real estate salesman. Apart from the remaining disability from his leg he found that he had difficulty concentrating, and was forgetful. It was also not the sort of employment that attracted him. He and his employer parted company by agreement in April 1994. He has since been looking for other employment. He has been referred to the Commonwealth Rehabilitation Service. He would still like to be engaged in work that involved sport and young people.

29. In May 1994 Dr Stubbs reported as follows,

"At my examination of John on the 11 May I note that it is actually
over two years since I last saw him. He was scheduled to go into
hospital under my care at that time for a quadricepsplasty to his
left leg but was transferred to Dr McNicol's care when I became ill.
I am very pleased to report that Dr McNicol has done an excellent
job in restoring function to John's left leg. John has of course
contributed much too by his diligent, co-operative, exercise
programme.
John has only worked for about nine months in the three and a half
years that have passed since his road traffic accident. At least
until early 1993, he was unable to work because of the effects of
his injury. Between August 1993 and April of this year he worked as
a sales and marketing consultant with Independant Real Estate,
basically he sold property on commission. He had no previous
experience of this work and found it a considerable shock to go from
a period after his accident when he had plenty of time on his hands,
to a job that involved him working seven days per week. He found
the business very competitive and indeed cut throat, and does not
intend to return to it. He is presently undertaking courses to
retrain.
His present complaints are relatively minor. He suffers from cramps
in the left thigh, which are particularly pronounced when the
weather is cold or when there is a sudden change in the weather.
With heat, such as a hot spa, the symptoms are much improved, indeed
he feels generally more flexible and mobile and more comfortable
when it is warm. Despite his severe injuries he otherwise has few
symptoms. His principal other difficulty is crepitus, that comes
from his right kneecap. That is a crunching and grating noise
which is exacerbated when he climbs stairs or squats down. He
therefore avoids squatting and will still hold onto the hand rail
when climbing or ascending stairs. For the last year he has been
undertaking a comprehensive exercise programme at Lennons Gymnasium.
He has regained a great deal of muscle strength, but still has some
functional difficulties with the left leg which can occasionally
collapse for no apparent reason. He has required no medications
though, and is no longer having medical consultations. I was able
to advise him that the screws inserted to repair the fracture of the
femoral condyle do not cause major disturbances to the bone
biomechanics and can be left in place.
John presents as a well, indeed athletic looking young man. He has
extensive scarring about his left distal thigh from the wounds, the
initial surgery and most recently the quadricepsplasty. His hip is
quite normal to examination, and he has a remarkably good range of
knee flexion given the severity of his injuries. At the time we
booked him for his quadricepsplasty he had an active range of
flexion to only 75 degrees. He now enjoys a normal range of flexion
in the left knee which matches that of the right knee. Indeed the
result of the quadricepsplasty is as good as I have ever seen. The
quadricepsplasty is in the form of a V to Y plasty so when the left
thigh muscles contract there is a noticeable hollowed area above the
patella which was formerly occupied by the muscle bellies, which are
now higher in the leg. The girth of the legs has therefore been
measured at 15cms rather than 10cms. There is a difference in girth
of 3cms between the right leg and the left. The girth of the calves
in both legs is equal. There is a two plus retropatellar crepitus
with moderate tenderness that accounts for his symptoms going up and
down stairs. There is a weakly positive drawer and Lachman's sign,
but these are only marginally more than his uninjured right knee.
The lateral collateral ligament is lax, but there is no effusion and
no heat in the joint. In short then his principal injury to his
left knee has recovered very well, with only a few positive signs,
principally being the retropatellar crepitus and the quadriceps
wasting. There is certainly some functional deficit in the left
leg, probably more than the degree of wasting suggests, but to
measure it accurately one would need to do a Cybex examination and
the point is somewhat academic, the left leg is weak, but only
moderately so.
The principal worry in his future will be what happens to the left
knee, which suffered quite severe intracondylar fractures. From
what one can observe at the present time the future for the left
knee is probably going to be good, despite the severity of the
injuries there is only a moderate degree of retropatellar crepitus
and there is no crepitus or signs of post-traumatic arthritis
occurring in the main part of the joint. I know that Dr McNicol
performed an arthroscopy in an attempt to ascertain the residual
degree of articular damage, but the knee was so densely bound up
from adhesions at that time that almost no visualisation could be
obtained and no useful information learnt. It would be much easier
to do an arthroscopy now, but John is not keen to have an operation
simply to find out what his future might be, since the operation can
in no way change the outcome, he would prefer to hope for the best.
I quite agree with this view."

30. The police who investigated the accident formed the view that the plaintiff had been the driver of the Torana. He was charged with culpable driving. At his trial he was acquitted.

31. In the course of preparation for the trial, his solicitors referred him to Dr Danta, neurologist, to comment on his amnesia and memory difficulties. Dr Danta first examined him on 2 July 1992. He found no abnormal neurological signs. He thought that amnesia for almost two days after the accident and retrograde amnesia for ten minutes or less was quite in keeping with a moderately severe head injury.

32. He examined him again on 9 August 1993. The plaintiff complained of continuing memory problems, some flickering of the left lower eyelid muscles, and some left ear deafness.

33. Dr Danta's investigations did not disclose any abnormal neurological signs. The audiogram was normal. He did not think the eyelid flickering, such as it was, was related to the accident. The memory disorder did not appear to be very incapacitating.

34. Dr Sutton conducted neuropsychological tests, but there is no evidence about the results or his opinion.

35. Messrs Parsons and Erskine, psychologists, conducted such an assessment on 19 October and 2 November 1993. His general cognitive ability was assessed at being in the low average range. There was no evidence of a significant problem with memory per se. But there was a significant and consistent problem with planning ability. In the opinion of the psychologists it is probable that the planning difficulty was due to the frontal lobe brain damage sustained in the accident. It would explain his reported memory difficulties and would interfere to some extent with his vocational and academic pursuits.

36. The defendant's solicitors sought a report from Dr Tym, psychiatrist, who examined the plaintiff on 17 December 1993. He also read reports by Drs Andrea, Cairns, Andrews and Sutton, whose reports are not in evidence, but who, I assume, examined him for the defendant.

37. Dr Tym could find nothing abnormal about the plaintiff's mental state. There was no clinical evidence of any malfunction attributable to brain impact damage, nor any reason to suppose that he was manifesting any features of brain frontal lobe damage, organic personality disorder or post traumatic stress disorder.

38. His dentist also referred him to Dr Viljoen who specialises in dental implants. The upper right first and second premolars and the upper right first and second molar teeth were lost in the accident. The lower right lateral incisor and lower right canine teeth sustained minor to moderate damages.

39. A number of other teeth required restoration, which was not related to the accident. Some of the repair to the accident damage could be performed by his local dentist. The bridgework that would be performed by Dr Viljeon would cost between $6,400.00 and $7,500.00. Treatment would take several months.

40. The defendant did not seek to cross examine any of the experts who treated the plaintiff. Nor was the plaintiff cross examined about the severity or the consequences of his injuries. I accept the views expressed by Drs Stubbs and Danta, and also those of the dental surgeon. Considering the nature and style of the investigations carried out by Dr Tym on the one hand and the clinical psychologists on the other, I accept the findings of the psychologists.

41. For his pain and suffering I would award $85,000.00, of which $15,000.00 would relate to the future. The greater part of his past suffering was concentrated in the first half of the time since the accident. I would award $7,000.00 for interest on the past component of general damages. There was agreement between the parties about the approximate range of hours during which the plaintiff received gratuitous services, but not about the rates at which they should be valued. I would allow at least $10,000.00 as the value of those services.

42. A report on past economic loss prepared by Macquarie Reporting Services was admitted by consent. There should be some discounting of the figure of $49,345.50 set in that report, because the plaintiff did not have security of employment. I would allow $45,000.00 for past economic loss. I would award $12,000.00 for interest on past economic loss.

43. The out of pocket expenses were agreed at $51,682.91. No claim was made for interest on the out of pocket expenses. Nor was there any claim for diminution in future income earning capacity.

44. I would allow a sum of $7,500.00 for the cost of future dental treatment.

45. If the plaintiff is entitled to judgment for his damages in full therefore the total sum would be made up as follows,

Pain and suffering $85,000
Interest $7,500
Griffiths and Kerkmeyer $10,000
Past loss of salary $45,000
Interest $12,000
Out of pocket expenses $51,683
Future dental expenses $7,500
---------------------
Total $218,683
---------------------

46. The question of a reduction in that amount on account of contributory negligence must depend upon the decision about who was the driver.

47. The plaintiff's evidence was that he had twice before the night of the accident attempted to drive Mr Smith's Torana. On the first ocasion he was asked by Mr Smith to drive it. When he tried to engage first gear he was unable to do so. The car was fitted with a manual gear lever. Mr Smith then drove the car himself. To get the gear changing mechanism to work he inserted what appeared to be a screwdriver into the mechanism.

48. On the second occasion, again at Mr Smith's invitation, he was again unable to get the car into first gear. He was accompanied on that occasion by Miss Kathleen Williams. She gave evidence and corroborated what he said. She also tried, and was unable to get the gear to engage. She then left. The plaintiff then fell asleep in the car, and Mr Smith arrived some time later and drove him home.

49. Mr Eric Kendrick was another friend who was also at the party. He had travelled in Mr Smith's car once, on that evening. He also noticed something wrong with the gar box, which Mr Smith dealt with by using a screwdriver or something similar. He was cross examined about evidence he gave at the plaintiff's trial that he did not see Mr Smith jam a screwdriver down into the gear box. He explained that by saying that he did not know and could not say that it was in fact a screwdriver, but it was something like one.

50. The plaintiff's brother, Tony Folino, gave evidence of an occasion on which he had attempted to drive the Torana. He had presumed that the owner would not object. He also could not engage first gear. He got out, locked the car and went back inside. He had not discussed the incident with Mr Smith. He had never seen him using a screwdriver to help engage the gears.

51. Mr Paul Loughhead was also at the party. He was called to give evidence for the defendant. He had been a passenger in the car on many occasions and had driven it himself on about a dozen others. His evidence in chief was that he had never observed any problem with the gear box when Mr Smith was driving, nor encountered any when he was driving. In cross examination he repeated that he had never had any problems with the gear box, but that on one occasion he had seen Gavin Smith manipulate the mechanism with a screwdriver in order to engage reverse gear.

52. I am satisfied that there was an intermittent fault with the gear box of the Torana, and that the plaintiff was aware of it. That is one circumstance that would tend against a conclusion that the plaintiff, rather than Gavin Smith, would have driven the car away from the party that evening.

53. Another circumstance tending the same way was simply that it was Mr Smith's car.

54. A further consideration was the evidence by Mr Kendrick, and Mr Coates that Gavin Smith had, towards the end of the party, co-operated to prevent his brother Greg Smith from driving Greg Smith's car away from the party. It is common ground that the plaintiff was more affected by alcohol than Gavin Smith. If Gavin was sober and sensible enough to prevent his brother from driving, it is unlikely that he would then get into his own car to be driven away by the plaintiff, who was also likely to be affected.

55. The plaintiff's evidence was that as people were leaving the party he spoke to a number of them, including Mr Coates and Mr Kendrick, about meeting later that evening in Civic. He and Gavin then went to Gavin's car, to go to the plaintiff's home to change into clothing more suitable for a meeting in town. The scene of the accident was on a route that would normally be taken by a driver going from the house where the party was held to the plaintiff's home.

56. His evidence in chief continued,

"Can you recall where you went in relation to the car?---Yes, to the
passenger's side of the car, hopped in the car.
And what happened after you got in?---Kevin and I just briefly
talked and then we - then we headed off, we were gone.
What can you recall after that?---I don't. The next recollection
that I have is I was in hospital on the Monday - the Monday
afternoon in intensive care."

57. On the afternoon of Monday 3 December the plaintiff made a statement to Constable Gaughan, who was investigating the accident. The only question and answer recorded that touches on the plaintiff's recollection was,

"Q. What is your last memory prior to the collision?
A. Gavin was taking me home to get some clothes, so we could
head on out after that."

58. When, on 2 July 1992, his solicitor was writing to Dr Danta to ask for his assistance in the trial, his letter included the following statement,

"Our client's instructions, since the incident, have been that he
did not believe that he was driving, although he had no specific
recollection. He recalls attending a party the night before the
incident and consuming a large quantity of alcohol. He recalls then
awakening in Royal Canberra Hospital where he was treated for
extensive injuries, particularly to his left leg."

59. It is understandable that his solicitor might express himself in that way, in the context of the issue that Dr Danta was to give evidence about at the trial.

60. However, the history recorded by Dr Danta is,

"The accident occurred, according to the patient and his mother,
about ten minutes past nine, and the last thing he recalls before it
is leaving with his friend and going towards the car about ten
minutes earlier."

61. One could expect the doctor to be asking careful questions and paying careful attention to the answers about the very subject matter on which his advice and evidence was being sought. That recorded history is more consistent with the version recounted by his solicitor than with his evidence.

62. It does not follow that the plaintiff is being deliberately untruthful. Many psychological factors would operate to affect his present recollection. I think that he was doing his honest best to recount his present recollection as best he could. But it is in the circumstances, not a very trustworthy recollection.

63. Mr Coates became a friend of the plaintiff through their association with Karate. He was sharing a flat with Mr Kendrick. By the end of the party he was influenced by alcohol. As he put it,

"I was definitely happy, I had had a few beers. I was still
conscious of my thoughts and well in control. I wouldn't have
driven though - I put that qualification on it and that's why we
caught a taxi home."

64. He said the plaintiff was also in a very good mood. He added,

"I wouldn't have said John should drive either. At the end of the
night John had had a lot to drink that night."

65. After Gavin had taken the car keys from his brother Greg, Mr Coates and others were standing outside. He continued,

"Some people were leaving who caught cabs. I turned around and I saw
Gavin and John at Gavin's car. Gavin opened his side of the car as
did John and they got into the car."

66. Asked which side was Gavin's side of the car, he answered,

"Gavin got into the driver's side of the car which is closest to
myself. The car was parked on the other side of the Place, if you
like, facing out of the Place, so Gavin was on this side and John
was on the far side of the car."

67. He said he was standing on the driveway when he made that observation.

68. A couple of moments later the car was driven out of Lendon Place, its tyres screeching as it went.

69. In cross examination he agreed that he did not see Gavin actually driving the car.

70. He had given evidence about the incident at the trial, and had also spoken to Mr Kendrick about the events of that night, and, in particular, about who had been driving the car.

71. Mr Kendrick gave evidence in the plaintiff's case. He also had met the plaintiff through Karate. Gavin Smith was also a Karate instructor. He did not drink as much as some others at the party, because he knew that it would be a long night. He also said that he saw Gavin and the plaintiff go towards Gavin's car. Gavin went to the driver's side and John went to the passenger's side. He saw them open their doors, but he did not see them get into the car. He also heard the tyres screech as the car went out of the Place, but he did not look, and he did not see who was driving.

72. His recollection also was that the Torana had been parked on the opposite side of the Place.

73. In cross examination he conceded that he had made a statement to the effect that he had seen the plaintiff waving from the passenger's side as the car drove off, and that such a statement was not accurate. He insisted that the plaintiff waved to him, from the passenger's side of the Torana, before he got into the car.

74. The handwritten notes made by the plaintiff's solicitor of an interview with Mr Kendrick are in evidence. It contains the following,

"JF sd he'd go with Gavin to pick up his clothes.
Saw them go to Gavin's car (ie JF and Gavin).
I can't remember who got in driver's seat. I wasn't looking.
JF waved as the car drove off.
He was on passenger's side and he waved from passenger's side."

There was a sketch showing Gavin's car on the other side of the Place, facing East, with a marking outside the passenger's door, and the words,

"JF waved to us from here."

75. I think it is clear that Mr Kendrick did not at any time see Gavin Smith or the plaintiff actually seated in the car. His memory is of seeing them about to get into it, Gavin Smith being on the driver's side and the plaintiff being on the passenger's side.

76. The defendant called as a witness Mr Paul Loughhead. He had been a friend of the plaintiff from their school days. He was also a close friend of Gavin Smith. He did not give evidence at the criminal trial. He had been approached by an insurance investigator after the trial.

77. Mr Loughhead was also a guest at the party in Lendon Place. He had driven to the party, but when it began to wind down he arranged to be driven by a friend, and changed his clothing. He then came outside where he saw Gavin Smith, the plaintiff, Greg Smith, Eric Kendrick and Andrew Coates. Greg Smith was getting changed between two cars. They were at a 45 degree angle to the kerb, on the same side of Lendon Place as the house where the party was held. The vehicle closer to the driveway was Gavin Smith's white Holden Torana, and the further away was Greg Smith's Ford Falcon.

78. He saw Greg Smith get into the Falcon, and heard Gavin tell him that he was not to drive. After some further activity he saw the doors to the Torana opened, and Gavin got into the passenger's side and the plaintiff got into the driver's side.

79. Mr Loughhead stated that he was at the side of the Torana. He leaned in the driver's side window and said to the plaintiff, "Take it easy". He may have added, "You're drunk, I'll see you in town later on".

80. The car was then reversed off the nature strip, stopped, and then driven off out of the Place, with a screeching of tyres.

81. It is quite consistent with Mr Loughhead's friendship with the plaintiff that he did not come forward to bring his evidence to the notice of the prosecuting authorities before the criminal trial. He was approached by an insurance investigator in a normal manner. There was no evidence of any motive for him to tell anything other than the truth about his recollection, to the investigator or to the Court. If his evidence is believed he was in a better position to see who drove the car than Mr Coates or Mr Kendrick, and, because of his direct involvement in the event, more likely to have a better recollection of it. All three of those witnesses had been affected by alcohol at the time, and the evidence does not really allow me to say with any confidence whether any one of them was more affected than any other.

82. It is also significant that Mr Coates and Mr Kendrick remembered Gavin Smith's car as being parked on the opposite side of the Place when Gavin Smith and the plaintiff went to get into it. Mr Loughhead was quite certain that it was parked on the same side as the party, parallel to Greg Smith's Falcon. That was also the plaintiff's initial recollection. He had given a version in evidence at his trial that accorded with that of Mr Coates and Mr Kendrick after discussing the question with one of them while he was being cross examined.

83. The following passage occurred during his cross examination in this case,

"Were there two cars parked outside the front of the house parallel
to each other but at an angle to the cul-de-sac. Do you follow what
I'm asking you?---Yes.
Were there two cars parked outside the house parallel to each other
but at an angle to the cul-de-sac?---Yes.
One of them was a Falcon car?---I didn't know this and I - what
you're saying, yes.
One of them was a gold or bronze coloured Falcon car, that's right,
isn't it?---Yes.
The other was the white Torana car?---Yes.
They were the brothers' two cars, correct?---Yes.
You now, that I remind you, have a distinct recollection that that's
a true account of where they were parked when your came out?---Yes,
I actually couldn't account for that myself. I was told that and
I'd only been aware of it in the last court hearing when I was told
that myself and a few others had hopped in the back of Greg's car.
I don't even remember that happening though. I'd said that.
What I'm asking you is whether Greg's car - that's the Falcon, the
bronze Falcon - - -?---Yes.
- - - was parked there?---Yes, as I said, it was, but I didn't know
- I mean, as I said, I only knew it was parked there because people
had said it was parked there and that I'd hopped in the back of it.
MASTER: You did not remember that at the time of the trial?---No,
sir, no.
Do you remember that now?---Well, I mean, I don't remember it. I
just know that it happened because other people have said it.
MR MORRIS: And you say you walked to Gavin's car - Gavin is the
deceased and Greg is the owner of the Falcon, is that right?---Yes,
that's correct.
You say you walked to Gavin's car, is that right?---Yes. Yes.
And I suggest to you that it was parked immediately outside the
party but at an angle on the grass verge, is that right? On the
side on which the party was taking place?---On the opposite side of
the road?
No, on the side on which the party was taking place?---That's where
I thought the car was initially parked but then I was told it was on
the other side of the road.
So that you changed your evidence, did you, to accord with someone
else's recollection?---No, not at all, I just didn't know.
Well, your recollection has always been that it was parked on the
side of the cul-de-sac nearest to the party, hasn't it?---Yes.
But you then had a conversation with Kendrick and Coates about that,
did you?---I think it was just Eric that I had spoken to, yes, and I
just said, to him that I don't know, no idea where it was parked,
did they know and that was it and I said that the next day when I
went into the court as well.
But you knew where it was parked because that's your recollection,
isn't it, that it was parked out side the party at an angle?---Yes,
that's where I thought it was, yes, well, that's where I thought it
was parked, yes. That's what I'd said, yes."

84. Later cross examination touching on the same topic did not affect the impression left by those answers to any degree. The plaintiff's memory of the position of the car was not good. His initial impression was that it was on the same side of the Place as the party. He was told that it was on the other side. He thought that the person who told him must be right, and gave evidence accordingly.

85. The plaintiff denied that Loughhead put his head in the driver's side window and told him to take it easy. However, if that happened, it happened during a time for which he was amnesic. I accept that the description that Dr Danta recorded him as giving to him about his last recollection before the accident was the accurate description.

86. The plaintiff was aware that Gavin Smith had previously been convicted of a driving offence involving alcohol. Mr Coates knew nothing about that.

87. Mr Kendrick, despite the fact that he was unlicensed, had asked Gavin Smith whether he was fit to drive, and told him that if he was not he, Mr Kendrick, would drive. That was on an occasion earlier in the evening when they had gone to Gavin Smith's house. He was not asked about any restriction on Gavin Smith's licence that he knew about.

88. Mr Loughhead gave evidence that he was aware that Gavin Smith had been convicted of an offence of driving under the influence, and that he needed his licence for his work. On occasions when he had seen him drink before he had always got someone else to drive.

89. That evidence was neither challenged nor controverted. It could afford an explanation for Gavin Smith's allowing the plaintiff to drive. Although he had displayed sound judgment in preventing his brother from driving, there was an inconsistency with that sound judgment in his getting into his Torana to travel whether he did so as driver or as passenger.

90. I think that from the plaintiff's point of view, the evidence about the circumstances in which the Torana left the scene of the party are at best equivocal. There are circumstances that make it likely that the plaintiff would not have driven. There are others that tend to make it likely that he did. If forced to choose I would prefer the evidence of Mr Loughhead to that of Mr Coates and Mr Kendrick and I do not regard the plaintiff's own recollection as being reliable when he claims to recall getting into the car on the passenger's side.

91. After the accident the ambulance was called and evidence was given by Mr Le Lievre, a senior and very experienced ambulance officer and paramedic. He arrived shortly before the Police Rescue Squad. After a short stay at the Ford Laser he left the other ambulance officer there to attend to the occupants and went to the Torana. It was on its passenger's side. He looked through the windscreen. He saw two persons inside. One was apparently deceased, lying on top of the other. The plaintiff was the person underneath. He was breathing very rapidly and being smothered by the body lying on him. The windscreen was removed to allow them to establish an airway for the plaintiff.

92. The plaintiff's feet were caught under the pedals on the driver's side. Police Rescue and Fire Rescue had by then arrived. Constable Aldridge disentangled his feet from the pedals.

93. In the experience of Mr Le Lievre it is a very common occurrence for the driver of a vehicle involved in a head on or oblique collision to have their feet trapped under the pedals. It is also common for them to suffer a fracture of the femur.

94. The plaintiff was removed from the car. His airway was attended to. His chest injury was examined. His leg was splinted and his tender abdomen was examined. He was placed in the ambulance and taken to hospital.

95. The chest injury that he observed the plaintiff to have suffered was consistent with his having collided with the steering wheel.

96. He also examined Mr Smith. The bulk of his injuries were to the left side of his body. In his experience those injuries were consistent with his having been the passenger in a vehicle which had been extensively damaged on the left side. The Torana had been extensively damaged on the left side of the front.

97. In cross examination he conceded that the appearance of the steering wheel and driver's side door, seen clearly in photograph 7 of Exhibit "C", were consistent with the driver having been forcibly wedged between them, which would be consistent with bruising and broken ribs at the rear of the right chest, together with damage to the left front chest where it came in contact with the steering wheel.

98. Constable Aldred was attached to the Police Rescue Squad. He also had experience of attending accidents where the driver's feet were trapped by the pedals. He had never experienced one where the person so trapped had not been the driver.

99. Constable Aldred also went first to the Laser, then to the Torana. When he arrived the roof had been cut and folded down. The deceased was still lying partially over the plaintiff. The deceased was removed from the vehicle.

100. He then investigated the plaintiff with a torch. He found that his feet were jammed underneath the clutch and brake pedals. When the ambulance officer told him to do so he untied the shoe laces and removed the plaintiff's feet from the shoes. There was also some material around his waist that was preventing his removal. It was suspended on something on the driver's side of the car. When he had released the feet he cut that material with a knife, and helped the ambulance officer remove the plaintiff from the vehicle.

101. Constable Conway gave evidence about his observations at the scene, and the detailed scale plan that he prepared. He observed marks on the median strip and on the road that indicated the track of the Torana as it crossed onto the Westbound carriageway, collided with the Laser and continued to the Southern side and off the road where it came to rest. The marks were consistent with the absence of any braking by the driver of the Torana before the impact.

102. Constable Gaughan was a member of the Accident Investigation Squad who took part in the investigations. He described the positions of the vehicles, as shown by Constable Conway's plan. He arrived at the Torana before the roof had been cut off. He looked down through the driver's window and saw the two persons inside. To his observation the passenger's seat had collapsed. Gavin Smith was closer to the ground. The plaintiff was lying across him with both his feet underneath the pedal compartment of the car. He was wearing a red top which was partly entwined with the steering column.

103. It is difficult to reconcile that description of the position of the bodies with the evidence of Mr Le Lievre that the body of the deceased was causing difficulty to the plaintiff's breathing by being on top of him. But the plaintiff's ability to breathe would be the first thing the ambulance officer would attend to and would be the sort of detail that he would notice and remember. It is clear, however, that the plaintiff's feet were caught under the pedals, and his body was suspended from the steering column, even though some part of the body of the deceased was causing difficulty with his breathing.

104. Mr Le Lievre also confirmed that there was no evidence that the Torana had rolled over completely, as there were no marks on the roof.

105. It is common ground that the blood alcohol reading of the plaintiff was .156 and that of the deceased Gavin Smith was .067. There was no expert evidence called about the significance of those readings, but I think that the breathalyser has been with us now for a sufficient time to enable me to infer with some confidence in a civil case that the plaintiff would have been visibly affected by alcohol. The deceased may not have been obviously so affected.

106. A lot of time was taken up at the hearing in an endeavour to demonstrate whether the Torana rotated in a clockwise or anti-clockwise direction after the impact. I do not now think that the direction was significant in causing any signs that would tend to indicate who was driving at the time of the collision.

107. It is clear that neither the deceased nor the plaintiff were restrained by seat belts. It is also clear that the impact was particularly violent. The bodies of both of them would have been flung about inside the car in a way which could not be predicted nor deduced.

108. However, it accords with common sense, as well as with the experience of the ambulance and police officers, that if anyone's feet were going to be jammed under the pedals in such a collision it is more likely that it would be the driver's feet, and that the jamming would take place very soon after the impact, rather than as a result of being randomly thrown about inside the car afterwards. The dimensions of the inside of the car, and the presence of the transmission tunnel between the two front seats, also make it unlikely that the driver's feet did not get jammed under the pedals soon after impact, whereas the passenger's feet became so jammed some time later.

109. Dr Bennett is a staff specialist in anatomical pathology at Woden Valley Hospital. She has been performing forensic autopsies regularly for about ten years. She carried out an autopsy on the body of Gavin Smith, and described his injuries. The cause of death was massive intra thoracic haemorrhage.

110. There was extensive bruising on the right side of the trunk, at the rear, and abrasions over the lower back. There was bruising of the left thorax. The upper part of the left arm was grossly distorted by multiple fractures, consistent with a crush injury.

111. Fractures of the right eighth and ninth ribs posteriors were relatively minor and undisplaced.

112. The crush injury to the left arm, the break in the left collar bone, and the internal thoracic injuries were, in her opinion, consistent with impact on the left side of the body. That would, of course, be consistent with Gavin Smith's having been in the passenger's seat, without a seat belt, at the time of the impact.

113. On the other hand, puncture injuries to the lungs, contusions to the lung, and pneumothorax injury were, in her opinion, consistent with the impact of a driver with the steering wheel. That type of injury was sustained by the plaintiff.

114. In Dr Bennett's opinion the injuries to the deceased were more consistent with his having been subject to impact with the car on the left hand side than with his having collided with the steering wheel. In considering the detail of the injuries I cannot see any reason to disagree with that opinion.

115. The plaintiff called evidence by Mr Wingrove, a consultant traffic engineer. Mr Wingrove had given evidence for the plaintiff at his trial, and had access to other relevant evidentiary material.

116. I do not think it necessary to analyse his evidence in detail. In his opinion it was at least possible that the deceased Gavin Smith had been driving the vehicle at the time of the impact. In his first report, dated December 1993 he expressed the opinion that the plaintiff was, more than likely, the passenger in the vehicle. That opinion seems to have been based more upon the nature of the injuries sustained by the deceased than upon the physical dynamics of the motor vehicle.

117. To the extent that it is, I prefer the opinion of Dr Bennett, who is more qualified to talk about the effect of various types of trauma upon the human body.

118. During his cross examination about the plaintiff's feet being jammed under the pedals, he gave the following answers,

"No, but what you're trying to predict is that in this accident the
driver swapped with the passenger?---I'm saying it's more than
likely in this case.
More than likely? More probable than not, is that what you're
really saying?---No, I'm saying more probable. It's - I'm saying
it's possible that that took place. I'm not saying that it's more
probable than not. I haven't put that degree of - - -
You've only ever said it could happen - - -?---Yes.
- - - anywhere, haven't you?---That's virtually what I'm trying to
say, yes.
You've only ever put it as a bare possibility, haven't you, ever?
---Yes.
And that's all it is, isn't it?---Yes.
A bare possibility?---Yes, and I've tried to explain the reasons why
it's a bare possibility."

119. Later, the following passage occurred,

"MR MORRIS: Would it be - you were asked this question at page 376,
in an endeavour to explain this interchange of the driver and the
passenger. By the way, would you care to explain how that happened
here again and why you think it's a probability?---I just think that
both bodies have migrated to the off-side of the car in the impact
and at some stage one body has been entangled or part of the apparel
has been entangled on the steering wheel and when the vehicle fell
on its side, under sheer gravity, one body just fell down and the
other one was restrained or held back from falling down.
MASTER: I am sorry, might I interpose there. The question you were
asked, why do you think it is a probability. Do you think it a
probability or a possibility?---I think it's a possibility.
MR MORRIS: You really don't know what happened do you?---I'm
perfectly honest about that. I don't think anybody knows what
happened in the accident.
It's Hobson's choice, as you said at the trial, isn't it?---Yes.
You can only base it on the type of injuries and the likelihood of a
possible scenario taking place.
One of the things you didn't take into account was this anatomical
reference point we've discussed earlier?---No, I have taken it -
I've taken into account that the bodies will move relative to the
vehicle - well, the vehicle as such time has changed.
I'm sorry, you've not been able to make deductions from specific
injuries, have you?---Sorry, that way of - I thought you were going
back to your golf ball-type scenario.
Yes?---No, I've tried very hard not to get involved into specific
injuries.
So, the evidence you're giving here is that it is possible that
Folino was the passenger?---Yes.
That's the extent of it, isn't it?---Yes, given - and then I've
tried to explain it, given the physical evidence and the
reconstruction of the accident, how it could have been possible, and
the movement of the vehicle relative to this particular accident.
Although it is possible, it is unlikely isn't it?---I wouldn't go as
far as saying it's unlikely. I'm saying it's possible.
All right. Well, I think you said, for instance, "I'm open minded
on who was driving. As far as I'm concerned there are so many
intangibles, for instance, that I can't tie down, to form any solid
view on who was doing what and who was sitting where." You gave
that evidence before the trial judge, didn't you?---Well, if it's in
the transcript I did. I can't - - -
Would you like me to show it to you?---I'd take your word .
It's at 384, line 30 and 32?---Yes.
You don't wish to withdraw that, do you?---No, I still say to this
day that the movement is so violent that no one can really know for
certain what took place, and up until such times as you can tie down
a few more facts then it is going to be very much a case of putting
up hypothesis and trying to support that hypothesis.
You would agree equally that the hypothesis that Folino was the
driver is quite feasible, wouldn't you?---It would be, but I don't
agree with it being the case given that the injuries sustained with
the direction of rotation, I think there are some shortfalls in that
- supporting that hypothesis.
The sum total of your evidence was that you just had no idea what
had happened, wasn't it?---Well, basically, I don't think anybody
knows what happens. I'm trying to say that this is a possible
scenario and I have this sort of evidence to try to support that
scenario.
Well, you know that you were giving evidence in the criminal trial?-
--Mm.
And you were advancing a hypothesis which would cast doubt on who
may or may not have been driving?---No, I was giving evidence in the
criminal trial that it was more likely - that he was more likely the
driver - sorry, that he was not likely to be the driver.
Well, in the end you said you were open minded about who was
driving?---Yes.
And that as far as you were concerned there were so many intangibles
or incidents that you couldn't tie down that you couldn't form any
view about who was doing what or who was sitting where?---Yes, at
that time I gave that evidence, if that's what the transcript says
yes.
And there has been nothing to change your mind, has there?---Well,
I've seen a lot more photographs, I've seen a lot - bearing in mind,
I only took the case on the day before and I read the transcripts
the night before.
Now, I think you said this at the trial, that "I'm not going to put
probability on any of it. I'll concede" - this is at page 379 point
12, I will read it to you again; "I'm not going to put probability
on any of it. I'll concede it is a hypothesis that is feasible.
What I'm really trying to say is, you can put any number of
hypothesis through here and I think that any of them, the lot of
them, could well be feasible. I don't think that because of the
violence and severity of this impact, I don't think you can really
come up with any conclusive probability of what took place." You
said that, didn't you, in your sworn evidence at the trial?---Yes,
and I've just said to the Master here today it was more of a
possibility than a probability. I don't put probability on any of
them.
Well, the probability is, of course, that Folino was behind the
wheel with his feet trapped when the car tipped over on the tree,
that is a probability, isn't it?---I don't put probability on any of
it. I have already said the - - -
Isn't it probable that he was in the car with his feet trapped under
the pedals when the car tipped on the tree, isn't that probable?---
When the car tipped on the tree, it is probable because that is the
position he was found in immediately after that incident.
Well, otherwise he would have had to defy gravity, wouldn't he?---
No, otherwise he would somehow have to - when it fell over on the
tree, got himself into that position. He must have been in that
position before it fell over on its side.
Well, when do you say he got into that position?---During the
rotation of the vehicle back at the impact zone.
Isn't it probable that he was in that position all along?---I don't
believe so."

120. Although there may have been some misunderstanding between Counsel and the witness during that passage, I think that the witness did concede that his hypothesis that the plaintiff was the passenger was only a possible hypothesis, not the probable hypothesis.

121. I think that was a fair concession for him to make. In any event it summarises the effect of his evidence upon me.

122. Evidence to that effect may well have been of assistance in obtaining an acquittal of the plaintiff at his trial. But in this action it is the plaintiff who bears the onus of proof.

123. The defendant called evidence from Mr Vaughan, also a highly qualified and very experienced traffic engineer and consultant. His qualifications included some expertise in the area of bio mechanics as it relates to motor vehicle accidents.

124. He had prepared a number of reports, and had commented in some of them on the reports by Mr Wingrove that had been served.

125. They were particularly at issue about the direction of the Torana after the impact. Mr Vaughan, as well as studying the relevant documentary material, had been present in Court while the other witnesses had given evidence. By the time he came to give evidence he had a deal of information which was additional to the material on which he had based his earlier reports.

126. He still thought that the Torana probably rotated in a clockwise direction, but was no longer committed to that proposition, and in any event thought that the direction of rotation did not matter very much to the ultimate conclusion about which of the two occupants had been the driver.

127. Not only had he not had any experience of a passenger's having feet entrapped under the control pedals, he found it difficult to conceive of how it could happen. He did not believe it was possible.

128. He also reviewed the injuries to the deceased in detail, and expressed the opinion that he could have received those injuries only by having been in the passenger's seat. The injuries to the plaintiff were at least consistent with his having been the driver.

129. He was cross examined about the precise point of impact between the two vehicles. That issue also does not seem to me to matter very much. The damage to the vehicles shown in the photographs makes it clear that the impact was violent. The period of time from the actual impact between the cars to the collision between the bodies of the unrestrained occupants and the interior of the Torana was, as Mr Vaughan said, measured in thousandths of a second.

130. I think it is far more likely that it was then that the plaintiff's feet became entrapped under the pedals.

131. I also agree, on the basis especially of the evidence of Mr Vaughan and Dr Bennett, that the injuries to the plaintiff and the deceased are more consistent with the plaintiff's having been the driver and the deceased his passenger.

132. Added to my preference for the evidence of Mr Loughhead over that of Mr Coates, Mr Kendrick and the plaintiff's recollection, those considerations constrain me to the conclusion that at the time of the collision the plaintiff was the driver of the Torana.

133. There must therefore be judgment for the defendant.

134. In the light of the findings that I have made I do not think it would be useful for me to express any hypothetical views about contributory negligence.

135. I direct the entry of judgment for the defendant.

136. I order the plaintiff to pay the defendant's costs.