Peterson v The Nominal Defendant [2011] NSWSC 579 (16 June 2011)

Last Updated: 17 June 2011

Supreme Court New South Wales

Case Title:	Peterson v The Nominal Defendant
Medium Neutral Citation:	[2011] NSWSC 579
Hearing Date(s):	29/11/2010, 30/11/2010, 1/12/2010, 2/12/2010, 7/12/2010, 8/12/2010
Decision Date:	16 June 2011
Jurisdiction:	Common Law
Before:	Hoeben J
Decision:	Judgment for the defendant. Plaintiff to pay the defendant's costs. I grant leave to the parties to make further submissions as to costs.
Catchwords:	TORT - NEGLIGENCE - motor vehicle accident in South Australia - question of fact - was there another vehicle involved in accident - inherent improbability of presence of other vehicle - whether sufficient evidence to establish negligence - whether the plaintiff was wearing a seatbelt at the time of the accident.
Legislation Cited:	Civil Liability Act 2004 (SA) Motor Vehicles Act 1959 (SA)
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Qier Peterson - Plaintiff The Nominal Defendant - Defendant
Representation
- Counsel:	Counsel Mr G Watson SC/Mr S Andrew - Plaintiff Mr D Trim QC/Mr DM Wilson - Defendant
- Solicitors:	Solicitors Wyatt Attorneys - Plaintiff Hunt & Hunt - Defendant
File number(s):	2010/44657
Publication Restriction:

Judgment

1. HIS HONOUR:

Nature of proceedings
On 2 November 2008 the plaintiff was the driver of a Subaru station wagon, registered in the Northern Territory. While the vehicle was travelling in a northerly direction on the Stuart Highway in South Australia, between Coober Pedy and Marla, it left the road and rolled over.

2. As a result of the accident, the plaintiff was seriously injured and became a quadriplegic.
   
3. The plaintiff has brought proceedings in negligence against the Nominal Defendant on the basis that the accident was caused by a large articulated vehicle, probably a road-train, the identity of which is unknown, which overtook the Subaru in such a way as to cause the Subaru to leave the highway and eventually overturn.
   
4. The plaintiff particularised negligence in the following respects:
   

(i) Failing to overtake another vehicle with safety.

(ii) Failing to take proper care in relation to other road users when overtaking.

(iii) Driving too close to another vehicle in the process of overtaking it causing the plaintiff to take evasive action.

(iv) Forcing the plaintiff to move so far to the left of the roadway so that the plaintiff's vehicle left the road surface and drove onto the gravel which ultimately caused the plaintiff to lose control of the vehicle.

(v) Driving at a speed excessively fast in the circumstances.

5. The Nominal Defendant has defended the proceedings on the basis that there was no truck involved in the accident and that the cause of the accident was that the plaintiff lost control of the Subaru station wagon.
   
6. Pursuant to an order of Davies J made on 21 September 2010, the matter proceeded as a hearing as to liability only under Part 28 rule 2 of the Uniform Civil Procedures Rules 2005.
   

Factual Background

7. Except where otherwise indicated, I find the facts to be as follows.
   
8. Although the Nominal Defendant was involved, it was agreed between the parties that there would be no requirement for the plaintiff to prove "due inquiry and search" (T.8.35). It was also agreed that the law of South Australia, in particular the Motor Vehicles Ac t 1959 (SA) and the Civil Liability Act 2004 (SA), would apply.
   
9. At the time of the accident the Subaru station wagon was owned by Mr Addicott. He was born in March 1943 and was a member of the Senior Executive Service of the Commonwealth Public Service. He was a valuer by qualification and was the Valuer General of the Northern Territory. He held that position between June 1999 and June 2009. He and the plaintiff were in a de facto relationship and had been since January 2008. Mr Addicott resided in Canberra, but would spend approximately one week a month in Darwin.
   
10. The motor vehicle involved in the accident was a 2004 model white Subaru Outback station wagon. Mr Addicott had been provided with the vehicle as part of his employment entitlement. The motor vehicle was mechanically inspected on 24 September 2008 and no defects were found. It was common ground that the accident was not caused by any mechanical defect in the motor vehicle.
    
11. On 25 October 2008 the plaintiff's sister, Su Li Deng (hereafter referred to as Ms Deng) arrived from France at Sydney Airport. Mr Addicott and the plaintiff had driven from Canberra to pick her up. Upon her arrival, they drove her back to Canberra and spent that night there.
    
12. On 26 October 2008 Mr Addicott, the plaintiff and Ms Deng commenced driving from Canberra towards Adelaide. Mr Addicott and the plaintiff shared the driving duties. Mr Addicott was to attend a conference in Adelaide, marking the 150 th anniversary of the introduction of Torrens Title. They stayed overnight at Murray Bridge and arrived in Adelaide on 27 October.
    
13. On Saturday, 1 November they left Adelaide with the intention of arriving in Alice Springs by the following night. Mr Addicott had work to attend to in both Alice Springs and in Darwin. The work involved a number of complex valuation activities. They stopped at Port Augusta for petrol and stayed overnight at Coober Pedy. The plaintiff and Mr Addicott again shared the driving.
    
14. The plaintiff, Mr Addicott and Ms Deng left Coober Pedy at approximately 8am on 2 November. Mr Addicott was driving.
    
15. The weather was fine and there was no suggestion that the visibility was other than excellent. In the relevant area the Stuart Highway runs generally in a north-south direction with one lane travelling in each direction. The surface of the road was bitumen and each lane was 3.5 metres wide. There was a gravel shoulder at each side of the highway, which was approximately .75 wide. The speed limit was 110 kph. There was no suggestion that the weather or the condition of the road surface made any contribution to the accident.
    
16. After approximately 15 minutes, the plaintiff took over the driving. Mr Addicott said that this occurred because he was familiar with the Northern Territory roads which were more winding and he thought it better that he take over driving once they entered the Northern Territory. Mr Addicott said that he had confidence in the plaintiff's driving. She used regularly drive in Canberra on weekends and on one occasion they had shared the driving on a trip from Canberra to Melbourne.
    
17. Mr Addicott's evidence concerning the plaintiff taking over driving duties is controversial on the issue of whether or not the plaintiff was wearing a seatbelt. His evidence on this issue was:
    

"A. Actually it was a ritual and in this situation it probably sounds a bit ridiculous but we walked around the back of the car, I'd give her a cuddle and a kiss and then walk back. And because she is shorter than me I sat her in the seat and adjusted the seat to the length of her legs and locked it in place and then, as on other occasions, made sure that she and Su Li, who wasn't familiar with Australian road laws and so forth, had their seatbelts done up." (T. 19.21)

"Q. You mentioned something before about checking something. Would you elaborate upon that? Did you say something to somebody? Was it to Qier or Su Li.

A. I have to communicate anything more than the simplest of messages via Qier. I wanted to remind Su Li particularly that she needed to put on a seatbelt and I would do that regularly.

Q. Pausing there. You are not saying this happened at the point of this changeover but at some point during the journey?

A. It was a regular bit of nagging that I would do.

Q. Why is that? Do you have a thing about seatbelts?

A. I do. I had a car accident some 30 years ago where I, while I did have an unfortunate injury with my head hitting the windscreen, but I do believe that the seatbelt prevented me from actually going through the windscreen and possibly wiping myself out.

Q. Just in respect of the seatbelts, do you believe you made any observation about Qier on the day of the accident when she took the wheel, about her and her seatbelt?

A. I certainly for my own satisfaction made sure that her seatbelt was done up." (T.20.5)

18. The Subaru was fitted with conventional retractable lap sash seatbelts. This model of Subaru contained a warning system when an occupant failed to fasten the seatbelt.
    

(a) There was a light on the dashboard which would flash;

(b) There was an audio warning, an annoying beep, which would commence when the Subaru drove at 20 kph and would then continue for 108 seconds.

Mr Addicott said that when the plaintiff took over as driver outside of Coober Pedy, he did not hear this beeping sound.

19. I will return to the question of whether the plaintiff was wearing a seatbelt at the time of the accident in due course.
    
20. Although the Subaru had air conditioning, Mr Addicott was not able to say whether the air conditioning was on or off. He was not able to say whether the windows were up or down. After the change of driver, the plaintiff was in the driving seat and Mr Addicott was sitting in the front passenger seat next to her. Ms Deng was sitting in the back seat behind Mr Addicott.
    
21. Before the accident Mr Addicott said that he was "very comfortable and content" with the way the plaintiff was driving. Ms Deng was reading Chinese newspapers in the backseat and he was "thinking about the difficulties of the valuation tasks that were in front of me" and looking out to the west (which was to the left of the car). It is common ground that the vehicle was travelling at 90-100 kph immediately before the accident. The accident occurred at about 9am.
    
22. The circumstances of the accident are controversial. What is relatively uncontroversial is that at a point about 70 kms north of Coober Pedy, the Subaru commenced an erratic path which seems to have been as follows:
    

(i) A movement to the left so that both left-side wheels of the Subaru entered onto the gravel shoulder of the western side of the highway.

(ii) A correction to the right so that the Subaru crossed the centreline and entered the southbound lane.

(iii) A correction to the left so that the Subaru re-entered the northbound lane.

(iv) A yaw to the right, across the whole of the road surface and beyond the gravel shoulder entering into a rollover.

23. When the vehicle came to a stop it was on its side, being the driver's side. The front windscreen was broken in the sense that it had a crazed pattern but had not shattered and remained in place. The plaintiff was slumped against the door of the car in the driver's seat on her side. Mr Addicott said that she was within her seatbelt but leaning against the driver's side door. Mr Addicott was retained by his seatbelt.
    
24. Following the accident, Mr Addicott tried to get some response from the plaintiff and was successful in getting her to open her eyes. He could also hear Ms Deng moving in the back of the car. He was able to punch out the glass in the passenger window above his head and was able to get out of the car. Either at that time or in the course of the accident, he suffered a gash to his right arm which severed some tendons and which subsequently required an operation.
    
25. Mr Addicott was unable to find his mobile phone and commenced walking along the Stuart Highway. Within 5 minutes he was able to stop a car which was being driven by two visitors from France. Ms Deng was able to extract herself from the car without Mr Addicott's assistance. When he returned with the French couple, she was already out of the car. Mr Addicott estimated the time between him exiting from the car and returning with the French couple at about 5 and 10 minutes.
    
26. There was an issue between the parties as to the position of the plaintiff's right arm following the accident. This was relevant to the question of whether she had been wearing a seatbelt or not. In cross-examination Mr Addicott's evidence on this issue was:
    

"Q. When you got back to the car you saw Qier was lying with her arm out the car window?

A. Her arm was somehow under the car. I can't at the moment visualise where it was, whether the car was sitting on her.

Q. When you say the car was sitting on her -

A. Somehow or other she was pinned at that point.

Q. She was pinned at the top of her arm, the right arm?

...

A. I can't remember with any great detail.

Q. We will see if this photograph refreshes your memory. Would you have a look at this photograph, please. Looking at this photograph, take a moment if you would like to carefully look at it. Does that depict the Subaru on its driver's side with Qier's arm protruding out to the right of the top of the car?

A. Yeah, it appears to, yes.

Q. Who is the lady? There seems to be a lady bending over with a black and white striped top on.

A. I don't know who that is.

Q. And the male person with the shorts on the right-hand side of

the photograph is a passerby?

A. I presume so. I was dressed differently to that that day.

Q. The position of Qier's arm as depicted in this photograph, is

that how you recollect how her arm was pinned under the car after

the collision?

A. I don't remember how she was pinned at the time that I saw

her.

Q. But her arm was pinned?

A. The arm appeared to be pinned at the time." (T.32.39 - 33.22)

27. Some other cars arrived after the French couple and at approximately 10.15am, Constables Baker and Agostino from the South Australian Police Service arrived. The police were the first of the Emergency Services to arrive at the accident scene.
    
28. The plaintiff was not able to be released from the Subaru until SES personnel arrived. The plaintiff was transferred directly to the Royal Adelaide Hospital while Ms Deng and Mr Addicott were taken by ambulance to the Coober Pedy Hospital. Ms Deng and Mr Addicott flew to Adelaide the following day. On 18 December 2008 the plaintiff was transferred to the Prince of Wales Hospital in Sydney.
    

Mr Addicott's evidence

29. An important question on the issue of liability is how the accident occurred and whether a vehicle, other than the Subaru station wagon was involved. In order to resolve this question, it is necessary to carefully examine the evidence relevant to it. Mr Addicott's evidence as to how the accident occurred was as follows:
    

"Q. Relevant to the accident what did you first feel, experience,

see or hear?

A. My first feeling was that of buffeting.

Q. Buffeting is a word, what does it mean?

A. It means the shuddering effect, like the effect of which

happened on, blowing on the side of a house or the car, and I

could recognise that as a truck passing us. It, it didn't worry me

particularly at the time because I had experienced it many times

before.

Q. And what did you next see or feel?

A. The next, it, from then on everything started to happen very quickly indeed. Qier moved the car to the left, the passenger side wheel got into the gravel. Her, the driver's side wheel was still on the road, on the bitumen and the, the front of the car was showered with gravel and dirt and my vision was obscured by the, the rear trailer of a vehicle of some kind.

Q. There is a lot in what you just said and I wanted to try and divide it up?

A. Yes.

Q. Are you absolutely confident about the order of events?

A. Yes, it...

Q. The first thing you mentioned as I recall it was the wheels on to the dirt on the left-hand side of the bitumen?

A. I don't know whether it was wheels or one wheel. It was certainly the front passenger wheel. Whether the rear passenger wheel was off the road as well I could not say with certainty. The driver's wheel was certainly on the bitumen and -

Q. Are you able to say now how long that happened?

A. No. Look, I only revisit this time with great difficulty and it all

happened in a very, in a very short period, that is all I can say.

Q. When you said difficulty what did you mean? Did you mean emotionally?

A. Yes.

Q. You then, in the second of three things, mentioned a spray of I

think you said gravel?

A. Gravel and dirt and stuff being flung up in front of the car.

Q. Where did that come from, the left or the ride or straight ahead?

A. It came from directly in front and my vision was obscured. Firstly by the cloud of dust and gravel flying up at the car but through it I could see the rear of a trailer carrying, it was either an enclosed truck or carrying a large container. It was I think a creamy or dirty white colour and there were aluminium strips to each side. But once again it was happening very quickly and this stuff was being thrown up at the car.

Q. Even in that you mentioned a few different things I want to take you back to?

A. Yes.

Q. You mentioned a truck. Were you able to see the automotive force, the vehicle, the prime mover?

A. No, no.

Q. So you have just assumed that what you saw was what you

described as a container?

A. Virtually a container or a rear part of an enclosed trailer, yes.

Q. When you used that expression, container, are you referring to

something?

A. Like a shipping container.

Q. You spoke of the gravel and dust et cetera. Did that impede your view?

A. It did.

Q. Were you able to see any markings on the truck or the trailer or the container?

A. No, I wasn't. It was drawing away but at that time, once again we are talking about a sequence of events, it was drawing away but I was certainly occupied with other things that were happening at that time.

Q. When you first saw the rear of the trailer where was it?

A. It was very close. I'd say within three metres of the front of the

car.

Q. Was it travelling entirely within one lane or was it between

lanes?

A. I'd say it probably had one wheel off the road, too.

Q. On the left-hand side or right-hand side?

A. On the left-hand side.

Q. What makes you say that?

A. Because of the dust that was coming up. If it was completely on the bitumen I doubt there would have been that kind of stuff being thrown at us.

Q. And when you say you saw the rear of it, you said that it was moving away. How rapidly was there a distance being created between the car in which you were travelling and the container?

A. It was moving away very quickly. I can't say what speed and certainly, as I say, I was distracted by other things going on at the same time.

Q. What happened to the car in which you were placed?

A. Qier got the car back on to the road, got all wheels back on to the road. At that time it, it was as if the car was on ice. It, it serious simply seemed to be running down the road. She was clinging to the wheel and I said "Are you okay?" And she said "No" and I just realised there was nothing I could do to help her. I couldn't interfere in any way and that is something that I've held myself guilty for since.

And the car continued down the road. Even if I'd been driving I don't believe I could have controlled it and then gradually, or not gradually, I'm sure it was very quickly in a time sequence, it veered to the right and was heading into the dirt and gravel on the right-hand side of the road.

I had this vague hope that the effect of driving into dirt would slow the car down and reduce its momentum but it, it started to turn over. I had this vision of the ground coming up towards me, the red ground coming up towards me. As the car turned it rolled to the left." (T.22.39-25.15)

30. Under cross-examination Mr Addicott described how the accident occurred as follows:

"Q. You told us as your car neared where the accident occurred you felt the sensation of buffeting?

A. I did.

Q. You've described to us what that is. At that time you didn't see anything that was causing the buffeting?

A. I didn't, because I've felt that motion on many previous occasions driving up and down that road, so it didn't in itself particularly alarm me and I was concentrating on some fairly thorny issues, but I probably would have - the sequence of events

that I did describe happened in quick succession from that point onwards.

Q. The first time you saw what you say appeared to be the back of a truck, that image was in front of your car?

A. That's right.

Q. You never saw a vehicle to the right-hand side of your car at the time you felt the buffeting?

A. I didn't look that way, no.

Q. When you first saw what you say you thought was the rear of the truck in front of you, how far was it, that is, the rear of what you say you thought was a truck, from the front of your car?

A. I hesitate to estimate but it looked very close. It was filling my field of vision so I would imagine it was something like three metres at that point and drawing away.

Q. So that's three metres between the front of your Subaru?

A. The front of the car, not where I was sitting, of course.

Q. The front of the car and what you thought was the back of the

truck?

A. Yeah.

Q. Between the front of the car and the back of the truck, as I understood your evidence, your view was obscured by dust and gravel being thrown up?

A. Absolutely, yes.

Q. At this point part of the Subaru is off the left-hand side of the

road?

A. Certainly the passenger side wheel was off the road, the front

wheel. I'm not sure about the back.

Q. And at this time the effect of your evidence is, as I understood it, that the truck had to be off, that is, the left-hand wheels at least, off the side of the bitumen to create this dust and gravel that was obscuring your vision?

A. Yes.

Q. Was the truck that was occupying your field of vision directly in front of the Subaru at the time you saw it for the first occasion?

A. As far as I could tell.

Q. Did you see the truck continue to move away from the front of the Subaru from that very first moment you saw it?

A. It was moving away but I was distracted immediately by the sequence of events that was happening in my car at that stage.

Q. And that sequence of events was triggered by Qier turning the wheel of the Subaru sharply to the right?

A. No, not sharply. She pulled it back on to the road but it wasn't a sharp movement.

Q. Could you describe the path of the Subaru when it went back on the road?

A. How would I describe it?

Q. Yes.

A. When it went on to the road or as it was on the road?

Q. From the moment it came on to the road, that is, back on to the road having been partially off to the left-hand side, could you describe the path of the Subaru from that point?

A. It seemed to be more or less straight. It wasn't weaving. The car was out of control at that point. It would have been out of control for anyone at that point. As I say, it just felt like the car was on ice and Qier was holding grimly to the wheel.

Q. And the vehicle went off to the right, that is, the eastern side of the road?

A. To the eastern side of the road but it did run down what would probably be the centre of the road for some distance.

Q. But out of control?

A. Apparently out of control, yeah.

Q. When you say apparently, was it your impression that the driver, that is, Qier, had lost control of the car at that point?

A. Well, I don't know if she lost control, she was still retaining the steering wheel, but the car was not responding.

Q. It went up, that is, the car, up about the middle of the road?

A. It came back on to the road, got about towards the middle of the road, I would say, and then slid - well, went on its way down the middle of the road until it veered to the right. It wasn't a sharp -neither movement off from the left to the road nor the movement off the road was sharp." (T.30.8 - 31.48)

"Q. I want to take you back to the moments leading up to the car leaving the road. To recap, you first saw the truck you say that was involved in this incident when it was directly in front of your car?

A. Yes.

Q. You didn't hear any sound from the truck before you saw it in front of you?

A. I didn't.

Q. And you were not aware of its actual physical presence until you saw it three metres in front of your car?

A. I was aware of the buffeting effect and presumed that it was a truck of some kind because I had experienced that sensation before on a number of occasions driving up and down the Stuart Highway.

Q. But you didn't even turn your eyes or avert your gaze to the

right?

A. Not at that point, because everything was happening very

quickly after that.

Q. Was this the first occasion that Qier had driven with you on this

length of road?

A. On this length of road?

Q. Yes.

A. Yes.

Q. After you, as you say, felt a buffeting sensation, did you hear Qier say anything?

A. I don't recall her saying anything until I asked her when the car was careering down the road after she got back on to the bitumen, all wheels back on to the bitumen when I could see there was nothing I could do, I said, "Are you okay?" And she said "no".

Q. That's all she said, "no"?

A. She was hanging on for grim death and sailing down the road

clutching the steering wheel and obviously highly stressed.

Q. I put it to you, Mr Addicott, that in fact you didn't experience any buffeting sensation immediately before Qier lost control of the car, that's not the truth of it.

A. I am sorry?

Q. I am putting to you that you did not experience any buffeting sensation in the car immediately before Qier lost control of the car?

A. Well, I did." (T.55.6 - .48)

31. There is a major difficulty with the evidence of Mr Addicott as to how the accident occurred and the presence of an overtaking truck. The difficulty is that on a number of occasions following the accident, when he was asked how the accident occurred, he made no mention of any other vehicle. On some occasions he denied that another vehicle was involved.
    
32. Constable Baker spoke to Mr Addicott at the accident scene and asked him how the accident had occurred. Constable Baker took notes in dot point form of what he was told. Mr Addicott told him that the plaintiff had "lost control" (T. 141.11) and made no mention of there being any other vehicle involved in the accident. Although he had spoken to Mr Addicott for only a short period of time, Constable Baker said that Mr Addicott "didn't appear to be exhibiting any signs of being too distraught" (T.134.9).
    
33. While Constable Agostino made no notes of her observations or

discussions at the accident scene, she had a clear recollection of having spoken to Mr Addicott. Her evidence on this issue was:

"Q. What did you ask?

A. Along the lines of what happened, and --

Q. Do you remember his response?

A. To the effect, not exact words, that he didn't know what had caused the accident, that one moment they had been driving along the road and the next moment they were rolling off it or involved in an accident.

Q. When abouts did this conversation take place in relation to your initial arrival at the scene?

A. I can't remember whether I had it immediately with him. I had a conversation with him, I remember he was being treated by the ambulance while sitting at the side of the ambulance. I can't remember whether that conversation was part of that or whether it was before the ambulance got there, but it was at some point at the scene.

Q. And do you have a clear recall of this conversation now?

A. Yes." (T.158.44 -159.11).

34. When Mr Addicott was cross-examined as to these conversations, his response was:
    

"Q. Was it firmly burnt in your mind at that time, though, that the

cause of Qier leaving the road had been the overtaking heavy

vehicle?

A. I don't remember what my comprehension of the situation was

at that time. As I say, my foremost thought all the time was Qier's

safety.

Q. Is it the case that it has been firmly fixed in your mind since this incident that the cause of Qier leaving the roadway was the actions of the driver of this truck?

A. As I have been able to reflect on the accident, after that initial period of trauma, I suppose, when I simply just didn't know what was going on at all, I didn't have myself together, I can sequence the events and say that yes, the intimidating effect of the truck would have caused that deviation off the road to the left and then back on to the road.

Q. And that's a clear image you have fixed in your mind after this initial trauma, as you've called it?

A. Yes.

Q. And this initial trauma, what sort of period are we talking

about?

A. I would say I was at that level of trauma that I am describing, it

would have persisted for a fortnight to three weeks. I was still

taking medication for pain for my arm injury, I was still vomiting

and fainting. Su Li had to wash me and help me dress. I had no-

Q. Do you recall two police officers being the first emergency personnel who arrived at the accident?

A. I do, yes.

Q. A male and a female?

A. Yes.

Q. And they both asked you how the accident happened?

A. They - my memory is not clear on the process, but they would

have, no doubt.

Q. To the female police officer you said you didn't know what had

happened?

A. I don't remember.

Q. Do you remember the male police officer having a notebook

with him?

A. No, I don't remember.

Q. He may have had but you don't now recall?

A. I don't recall that, no.

Q. He asked you specifically how the accident had happened, did he not?

A. I can't remember. As I say, my memory of those subsequent events is kind of limited.

Q. I put it to you that male police officer specifically asked you how the accident happened and you said that Qier lost control?

A. If that's his recollection I probably did.

Q. You didn't have any notion of how the accident occurred at the scene of the accident, did you, you simply knew that Qier had lost control?

A. No. At the time my main priority was Qier and I was only answering questions that were put to me in the words that I could find at the time. I remember thinking I've got to keep myself together, I've got to keep myself together, but that certainly was a very extraordinary time." (T.34.41 - 35.48)

35. Ms Ralph, a case manager with the Australian Taxation Office, gave evidence concerning her contact with Mr Addicott following the accident. As a case manager, her objective was to return Mr Addicott to work as soon as possible. This involved discussing with him what his injuries were, looking at whether a rehabilitation provider should be engaged and whether medical assessments were necessary. She had an independent recollection of Mr Addicott because "it is the only motor vehicle accident that I've had to deal with and also because Mr Addicott was a Senior Executive Service level officer, which is quite high in the ATO, quite a fuss was made at the time to look after him" (T.191.13).
    
36. This recollection was supported by entries which she made under a computerised system known as "PIE" (People Issues Escalation System). Her entries into the computer system were based upon handwritten notes taken at the time but subsequently destroyed. These computer printouts became exhibit 10. This contact with Mr Addicott took place in November 2008.
    
37. Her evidence concerning what she was told by Mr Addicott was:
    

"Q. Do you recall whether on that occasion you in fact inquired of

him as to the circumstances of the accident that had led to his

claim?

A. Yes, I do believe I did and Mr Addicott told me that the accident

happened about 100 kilometres north of Coober Pedy, that Ms

Peterson had been driving and that she had skidded on the gravel

on the side of the road and lost control of the car." (T. 192.25)

38. In relation to Mr Addicott's emotional state, Ms Ralph said:
    

"Q. And when you say you saw Mr Addicott, you said he was upset, did you have any concerns about the cogency or the reliability of the description of the accident he gave you?

A. No, he was able to discuss what had happened, even though he was obviously distressed, because he was very concerned with Miss Peterson's welfare and he didn't really want to have to come into the office to do all the admin side of things." (T. 196.41)

39. One of the computer entries in exhibit 10, made by Ms Ralph, described the accident in the following terms:
    

"The accident occurred at - 9am on Stuart Highway on 2.11.08 - a 100 km north of Coober Pedy. Qier was driving at the time of the accident. Neither Graeme nor Qier had consumed any alcohol in the 24 hours prior to the accident. Graeme believes Qier skidded on the gravel shoulder of the road, and over-corrected which caused the vehicle to roll. There was no other vehicle involved. The vehicle was "written off'.

That entry was made on 13 November 2008.

40. Mr Addicott was cross-examined as to his contact with Ms Ralph:
    

"Q. Do you recall Ms Ralph asking you how the accident

happened?

A. I don't recall the conversations, no. I, I know she was

extremely worried about Su Li and attempting to find someone

who could speak French to her.

Q. Do you recall anything you might have said to Ms Ralph about how the accident had occurred?

A. I don't, to be honest, at that time. It was all part of that overriding emotional pain I was feeling. I just felt that I was living in a nightmare at that point.

Q. But you remember the fact of the matter being that she actually

raised with you how did the accident happen?

A. I don't remember her doing so but I presume she would have done.

Q. I put it to you when you saw her on the occasion I directed your attention to, you told her that the accident occurred approximately 9am on the Stuart Highway on 2 November about a hundred kilometres north of Coober Pedy, that is correct?

A. I don't remember how accurate the time or the distances are but that is the circumstances of the case.

...

Q. And then I put it to you on this occasion you went on to tell Ms Ralph that you believed Qier skidded on the gravel shoulder of the road and overcorrected which caused the vehicle to role?

A. I don't recall those words, no. I don't recall saying that.

Q. Do you accept you may have said that to her?

A. Because I can't remember that I did, I can't say.

Q. You see, Ms Ralph will tell the court that you went on to say to

her there was no other vehicle involved?

A. It was in that sense. I meant there was no collision.

Q. Is that what you told her? That there was no other vehicle

involved?

A. In the sense that there was no collision, that was my

understanding of her question.

Q. I see. You remember the question now, do you?

A. No, but that would be my understanding of that question.

Q. Didn't you think it important if you were asked that question to explain that Qier had been forced off the road by a large truck?

A. I don't remember at that time, I'm sorry." (T.38.34 - 39.34)

41. Evidence was given by Ms Bright, who in November 2008 was a customer services officer with a company called Sureplan. Sureplan was an organisation which lodged insurance claims in respect of car accidents involving vehicles made available to Senior Executive Service Officers such as Mr Addicott. While Ms Bright had no independent recollection of what she had been told by Mr Addicott, she clearly recalled speaking to him and being provided by him with details of the accident. Those details she recorded by way of computer entries which became exhibit 8.
    
42. The computer entries which were made in mid November 2008 variously described the accident as follows:
    

"The passenger (custodian) is out of hospital and can be contacted. I spoke with him today and he provided a similar description of the accident (which has been added to file) but cannot account for the initial swerve by the vehicle that caused the driver to over correct."

"The passenger's (OC) version - 100 km north of Coober Pedy. The passenger was looking out the window when the car swerved (OC does not know why but confirmed the driver was not distracted). After the car swerved, the driver attempted to correct it but has lost control and the car has left the road on the right hand side and has started to roll several times, with the resultant damage."

"The incident reporter was not provided with complete information.

The custodian (passenger) advised there appears to be no mechanical fault. He believes the driver over-corrected after skidding on some gravel and has left the road, rolling the vehicle."

43. Mr Addicott was cross-examined in relation to his contact with Ms Bright as follows:
    

"Q. I put it to you on 18 November, that is 2008, some 16 days after the accident, Ms Bright of Innovations Sureplan contacted you about processing the claim for insurance and asked you for a description of the accident?

A. I, once again I have no memory of that conversation.

Q. I put it to you that in such a phone call she told you that the, the description of the accident that was available to her was that about a hundred kilometres north of Coober Pedy the passenger was looking out the window, and that was you. When the car swerved, you didn't know why but confirmed the driver was not distracted after the car swerved. The driver attempted to correct it but lost control and the car has left the road on the right-hand side and started to roll several times with the resultant damage. And you advised there appears to be no mechanical fault and you believe the driver overcorrected after skidding on some gravel and left the road, rolling the vehicle. And that you communicated, when describing the accident, the circumstances that both you and Qier were in hospital. I'm putting to you that is the effect of what Ms Bright said was a description of the accident available to her from the records that she had control of?

A. That was her summary of what that conversation was, are you saying?

Q. I'm saying that is what she put to you. This is the conversation

to which I directed your attention which I'm suggesting to you

occurred on 18 November 2008?

A. I don't remember the conversation but the point was that I was

not in hospital. I'd been operated but I was not admitted to

hospital.

Q. Putting that to one side the description of the accident that I'm

putting to you that Ms Bright recited to you was to the effect that

I've just put to you. Do you recall that occurring?

A. I don't recall that conversation and that apparently is her

summary of what she understood to be the subject of the

conversation.

Q. You accept that that may have been put to you in a

conversation you do not now recall?

A. I don't recall the conversation so I can't accept or deny.

Q. Isn't that description of the accident that I've just put to you

which was summarised to you by Ms Bright, isn't that in fact what

occurred?

A. Not so. Only partially. If the car left the road to the left, came

back on the road and then was out of control, those elements are

right. The car turned over. Qier ended up in hospital. I spent a

few hours in hospital but that, that's...

Q. Yes, but in the description that I put to you and suggest that it was in turn put to you by Ms Bright, there is no mention of another vehicle at all, is there?

A. Apparently not.

Q. When you spoke to Ms Bright in this conversation which you

say you do not recall, I put to you that you added, when you spoke

to her, that you could not account for the initial swerve by the

vehicle that caused Qier to overcorrect?

A. I can't recall a conversation, that's all I can say." (T.41.17 - 42.18)

44. Evidence was given by Ms Neil, who in November 2008 was employed by the Royal Adelaide Hospital as a compensation officer. Her role was to determine whether a patient at the hospital had a claim for compensation with any insurer throughout Australia. Ms Neil said that apart from documents which she had completed in relation to the plaintiff's claim she had quite a specific recollection concerning the events relating to the claim (T.179.9). Because the plaintiff was too injured to complete the forms relating to the accident, Mr Addicott completed them on her behalf.
    
45. Ms Neil remembered Mr Addicott coming to her desk on 14 November 2008 with the vehicle accident form and asking her what needed to be done in relation to it. She had filled in the form for him and said that all of the information on the form had been provided to her by him. In relation to the question on the form about details of the accident, Ms Neil's evidence was:

"Q. Do you have a recollection of speaking to Mr Addicott about this question?

A. I do.

Q. And can you tell us then, please, what question was asked by you and what answer was provided by Mr Addicott which permitted you to answer the question in that fashion?

A. I asked him the details of the accident and he advised me that he had spoken to his wife that morning and she had told him that she had swerved to miss a kangaroo and because this form is just a generalisation for our hospital we then normally just put the details like "driver, single vehicle accident" or "lost control", but he did tell me that she had swerved to miss a kangaroo.

Q. As a result of what he said you wrote "driver lost control"; is

that right?

A. Yes. He said that she had lost control." (T.181.25)

46. On the form (exhibit 1 and exhibit 9) the question asked was "Details of accident: (e.g. car lost control and hit stobie pole, other vehicle went through red light, etc.)" the response is recorded as "Driver lost control". Later in the same form in answer to the question "If you are not entitled to a claim through Third Party Insurance, please state reason why? i.e. driver of single vehicle, lost control" the response set out on the form is "Driver lost control". The form was signed by Mr Addicott.
    
47. In answer to a question about whether she had been told anything about another vehicle, Ms Neil's evidence was:
    

"Q. Just pausing there, if something was said by Mr Addicott to you about the involvement of a road train or a truck or some other vehicle, how would this form have been filled out differently?

A. It would be completely different. Because of my knowledge with CTP, compulsory third party, if there's any mention of another vehicle involved or a cow or anything like that it changes the whole perspective of the claim. If a vehicle is involved then I do advise them that they are possibly entitled to a claim." (T.182.5)

48. Mr Addicott was cross-examined in relation to the Vehicle Accident Form and the evidence of Ms Neil:
    

"Q. And do you recall attending at a desk in the finance department of the Royal Adelaide Hospital and speaking to a lady about completing this form?

A. I don't, I'm sorry. I remember going to the finance department but I don't remember the purpose or the, to whom I spoke.

...

Q. Did it occur to you that it would be important to the hospital to know whether there was some compensation that might be

received by Qier as a consequence of the accident from which the hospital could seek reimbursement of its costs?

A. Certainly not.

...

Q. You will see about four lines from the top there is a typed question, Details of Accident. I won't read the rest of the words. Do you see that?

A. Yes.

Q. The words are not in your handwriting?

A. No.

Q. But in some other person's handwriting, "Driver lost control"?

A. Mm.

Q. Is that not the detail you provided to a lady in the finance department at the same time that you attended there and in fact signed the bottom of this document?

A. Well, it must have been if she got that information but I don't recall that, those conversations, I'm sorry.

Q. And you will see the same answer appears opposite a question halfway down the page which I will not read out in its entirety. See it starts "If you are not entitled to a claim". Do you see that?

A. I see that. I don't remember that, answering that question as such. I think that must have been filled in.

Q. Aren't the two answers on this page about how the collision occurred in fact the truth of it. That Qier just lost control of the car she was driving north on the Stuart Highway?

A. Not so.

Q. In fact you tell us you don't recall this occasion when you signed the document but you acknowledge it is your signature?

A. That is my signature, yes.

Q. I put it to you that what you told the lady who completed the form for you and in front of whom you signed it, was this: You said that your wife was now able to speak to you and that very morning she had told you that she had swerved to miss a kangaroo?

A. No, I never, Qier never said that to me.

Q. Never?

A. Never." (T.43.12 - 44.37)

49. I do not accept the evidence of Mr Addicott as to the presence of another vehicle immediately before the accident. I am of the opinion that Mr Addicott did not see another vehicle and was unaware of the presence of another vehicle immediately before the accident.
    
50. On that issue, I prefer the evidence of Constables Baker and Agostino and of Ms Ralph, Ms Bright and Ms Neil. I found those witnesses to be impressive, particularly Constable Agostino and Ms Neil. I formed a clear impression as to each one of them, that they were doing their best to assist the Court and to accurately set out their recollections of the events of November 2008. None of those persons had any motivation to mislead the Court. Where their evidence conflicts with that of Mr Addicott as to the presence of another vehicle immediately before the accident, I accept their evidence and reject that of Mr Addicott.
    
51. Constable Baker, Ms Ralph, Ms Bright and Ms Neil were able to explain clearly the documents which comprise exhibits 1, 4, 8, 9 and 10. Those documents were consistent with their evidence as to what they were told by Mr Addicott.
    
52. I do not accept that Mr Addicott was so traumatised by the accident that he was incapable of properly describing the accident. I do not accept that he was unable to refer to a large truck driving so close to the white Subaru that it caused the Subaru to partly move off the bitumen surface of the highway to the west. Mr Addicott struck me as being a careful and meticulous person who, had he made such observations of another vehicle, would have communicated that fact certainly to the police and to at least one of Ms Ralph, Ms Bright or Ms Neil.
    
53. I do not accept his explanation that when asked whether another vehicle was involved in the accident he interpreted this question to mean whether there had been a collision with another vehicle. I am satisfied that had Mr Addicott seen and felt another vehicle as he described in his evidence, he would have said something about it to at least one of Constables Baker and Agostino and Mses Ralph, Bright and Neil.
    
54. I have concluded that Mr Addicott did not see or feel the presence of another vehicle immediately before this accident.
    
55. That finding was implicitly accepted by senior counsel for the plaintiff in the course of oral submissions. There, counsel said:
    

"COUNSEL FOR PLAINTIFF: ... I am not standing here to say he should be treated as a liar. I am going to put a submission now that is capable of explaining the circumstances, that Mr Addicott may, an enormously emotional matter for him, have reconstructed this. I am not also going to put to your Honour that Mr Addicott gave accounts under some disadvantage because he was frightened, shocked, emotional, et cetera. They went on for too long.

HIS HONOUR: That's the troubling feature. Had it just been what he said to the police followed up a few weeks later by a change, you may say, well, that may well be a very fraught situation, but to do it three or four times.

COUNSEL FOR PLAINTIFF: Your Honour anticipated that that may be my answer. It is not. I will tell you what my answer is. We submit that the probability with Mr Addicott is that he did not see what happened. He was probably distracted. Probably alerted to it and when it happened he did not see what happened.

Is there a possibility that in the agony of that moment the car, losing control, he looking at his wife - they had not been together all that long - and he did not see what happened.

Imagine for the moment if Graeme Addicott had come before your Honour and said: I was looking there, thinking about some tricky valuation I had had to carry out and she lost control of the car. It began swerving across the road, it rolled out over the other side of the road. I don't know what caused her to lose control. That could be consistent with there being no truck but it also could be consistent with there being a truck which he did not see. That is our explanation and that is what we ask your Honour to find. But that is all I can say about it." (T.280.41 - 281.17)

56. Similar observations were made in the plaintiff's written submissions:
    

"36 It is accepted that Mr Addicott's evidence has problems and the absence of a contemporaneous account by him means that his evidence is of very limited value.

37 This is not an acceptance that Mr Addicott is a liar - far from it. Rather, his evidence probably suffers from the problem that it is a reconstruction, built upon the observations of Ms Peterson and Ms Deng. It is submitted that Mr Addicott is a careful and considerate man, who was truthful when he says that he bears some guilt in relation to the incident.

38 The Court may prefer to put Mr Addicott's evidence aside and to test Ms Peterson's case by reference to the other evidence. Putting Mr Addicott's evidence aside does not damage Ms Peterson's case. The balance of the evidence is sufficient to prove the case."

57. The problem created by Mr Addicott's evidence is not as simply resolved as the plaintiff's written submissions would have it. It is not just a question of putting Mr Addicott's evidence concerning another vehicle to one side. If, as I have found and as appears to have been conceded by the plaintiff, Mr Addicott did not see or feel a truck passing the Subaru, the question remains how could that be so if in fact a truck did pass the Subaru in the manner described by the plaintiff and Ms Deng.
    
58. Mr Addicott's failure to see any such truck needs to be reconciled with the evidence of the plaintiff and Ms Deng.
    

The Plaintiff's evidence

59. The plaintiff was born in July 1962 in Shenyang, a city in China. Her principal language is Mandarin. She speaks a little English. She married a Mr Peterson, who was a student living in China and came to Australia with him in August 1993. That marriage broke down and they were divorced. While living in Darwin, the plaintiff met Mr Addicott and they commenced living together in 2008 in Canberra. At the time of the accident, the plaintiff had had an Australian driver's licence for over 10 years.
    
60. It was her evidence that she put on a seatbelt when she became the driver of the Subaru after leaving Coober Pedy. She said that because Mr Addicott's legs were longer than hers, she moved the seat forward. She said that she wore a seatbelt every time that she drove a motor vehicle. She said that immediately before the accident, the vehicle was travelling a little over 90 kph.
    
61. The plaintiff's description of how the accident occurred was as follows:
    

"A. After I started driving it wasn't long, not more than half an hour. I saw from the rear view mirror that a big truck was approaching behind. I saw the truck about 50 to a hundred metres behind.

Q. What happened after that?

A. I, because of the truck was travelling at a fairly high speed, I moved, I moved my car to the side a bit to try to give way to the truck. I don't know how, how far the truck was behind me.

...

Q. When you first saw the truck did you do anything about your

speed?

A. I increased my speed to some extent and moved, while I

moved to the side of the road.

Q. Do you know how fast you were going when you increased

your speed?

A. About a hundred.

Q. And when you increased your speed to a hundred the truck

continue to gain on you?

A. Yes. It was very close and also very high speed.

Q. You say you moved your car to the left. When you moved your

car to the left where was the truck?

A. The truck was behind me and it, it honked its horn once.

Q. I did ask you, when you moved your car to the left where was the truck? Was it still behind you? Next to you? Where was it?

A. It was overtaking me.

Q. From where you were sitting in your car how far away, you can indicate this with your hands or by whatever means, how far away was the truck from your car?

A. When I moved my car to the left side the truck then overtook me from my right side.

Q. Now, I'm asking you at the time you moved your car to the left. How much distance was there between your car and the truck?

A. Are you asking about the distance between these two vehicles when it overtook me?

Q. Yes. How far was between the two vehicles?

A. About that distance.

COUNSEL FOR THE PLAINTIFF: A metre and a half.

COUNSEL FOR THE DEFENDANT: Yes.

Q. Could you feel anything in your car when the truck was next to

you?

A. My car was shaking.

Q. Could you control it?

A. At that time I could control it.

Q. Why did you move your car to the left?

A. Because after the front of the truck passed me the rear part of the truck was very close to my car. If I didn't move to the left the truck would have hit my car.

Q. In terms of moving to the left, when you moved to the left how close was the truck to your car?

A. I showed you before, it was that close when the truck overtook me. Because the truck was travelling very fast the rear part of the truck was going to hit my car. If I didn't move my car to the left the truck would have hit my car, so to avoid the collision I moved to the left and I moved to the left further. The wheel at that time left the road and was actually on the dirt and the grass part of the road.

Q. Compared to the speed of your car, was the truck going faster? A. Very fast.

Q. After you felt your wheels leave the road surface and go on to the dirt and grass, what happened next?

A. Then I swerved to the right to try to correct the car. It went to the right and rolled over.

Q. Could you describe to the judge what the truck looked like?

A. The truck was very big, very long. It was around the end of the first trolley.

Q. Could you start that again?

A. It was very big, very long. It was around the end of the first

trolley and the beginning of the second trolley.

Q. I don't understand that. Could you describe what you mean by a trolley?

A. The trailer part of the truck, there is a truck cabin at the front and then the trailer part.

Q. And with the trailer part, were there different parts to the

trailer?

A. I don't understand what you mean.

Q. You said there was a cabin part?

A. The cabin and then three parts of the trailer part of the truck."

(T.61.22 - 64.6)

62. The plaintiff was cross-examined as to how the accident occurred. She said that she first observed the truck in her internal rear view mirror. The truck was about 50 -100 metres behind at that time and she observed its cabin to be white in colour. She said that the truck was directly behind her vehicle when she first saw it. She looked in her rear vision mirror when she heard the truck sound its horn.
    
63. The plaintiff's further evidence under cross-examination was:
    

"Q. At that time when you looked in your mirror and saw the truck after that honk, what side of the road was the truck?

A. When I heard the honk I moved my car to the left and then the truck started overtaking me.

Q. I want to know when you looked in your rear vision mirror when you heard the truck honk its horn, was it straight behind your car or was it on the wrong side of the road?

A. After I heard the honk I started to move into the left. The truck moved forward some more and it started overtaking me.

Q. Did you see the truck move to its wrong side of the road?

A. The truck didn't move into the wrong side of the road. When it, the road had two lanes, one for each direction. When the truck overtook me I increased my speed and went forward and the truck overtook me but it stayed, the truck stayed in the right lane at all times.

Q. When you say the right lane?

A. Correct. The correct lane.

...

A. Before the truck overtook me it was in the same lane as I was travelling. When the truck overtook me I'm not too sure whether it went over the midline into the wrong lane. I didn't know about that.

...

Q. And you have told us about the honk you heard. Was that a

very loud noise?

A. The normal, the normal sound of a honk.

Q. Did it startle you?

A. No, it did not. I just moved to the side and increased speed a

bit.

Q. Was there only one honk that you heard from the truck?

A. Yes, that is correct.

...

Q. When you first felt this movement you have told us about in your car, where was the front of the truck in relation to where you were seated in your car?

A. Not far away.

Q. Was it in front of where you were seated, that is your position in the car? Or was it behind where you were seated in your car? I'm talking about the front of the truck?

A. It was, I felt the movement when it was very close to where I was sitting.

Q. When you felt this movement you have told us before it was shaking, where was the left-hand side of your car?

A. At that time I had already moved to the left a bit. They were still on the left side of the road.

...

Q. You mean your car was on the left side of the road but was it

all on the bitumen?

A. One wheel was very close to the grass already.

Q. Do you mean front left-hand wheel of your car?

A. Yes.

...

Q. I'm asking about the cabin. How close was the side of the cabin of the truck to your side of the car as the cabin went past your car? A. About that.

COUNSEL FOR DEFENDANT: Witness indicating a metre. About a metre?

COUNSEL FOR PLAINTIFF: Yes." (T.65.46 - 68.35)

"Q. Are you sure there were three trailers behind the cabin of the truck that passed you?

A. I think so.

Q. And all three trailers eventually got ahead of your car after the truck passed?

A. The three trailers passed me only after I moved to the left. When I was going straight the trailers hadn't passed me yet. I moved to the left and then moved back.

Q. Ever since the accident has it been your memory that there were three trailers being towed by the cabin?

A. Yes.

Q. You have never been uncertain as to whether there were three

trailers or just a large truck?

A. No, I have never been uncertain. It was three, three trailers."

(T.71.32 -.49)

Q. Why did you increase the speed of your car if it was obvious the truck was going to pass you?

A. Because the truck honked its horn behind me so I just moved, moved forward further.

Q. Why did you not slow down your car to make it easier for the truck to go past you?

A. Because I thought if I slowed my car down it would be dangerous because the truck was very close to me already.

...

Q. Can you tell us how much faster the truck was going than your

car?

A. I think it was about 120.

Q. When you last saw the truck, where was it?

A. The final position?

Q. Yes. The very last time you saw the truck it was in front of

your car?

A. The truck cabin was in front of my car.

Q. Where was the back of the truck at the time you last saw the truck?

A. About that (demonstrating).

COUNSEL FOR DEFENDANT: Two-thirds of a metre?

COUNSEL FOR PLAINTIFF: I thought it was a metre.

HIS HONOUR: I don't think it was a metre. It was more like two-thirds of a metre.

Q. But that wasn't the back of the truck you are talking about. Aren't you talking about the side of the truck?

A. I was talking about the section between the end of the first trailer and the front of the second trailer.

Q. Did you see the whole of the truck, including the trailers, go past the front of your car?

A. At that time I started moving to the left. If I didn't, the truck would have definitely hit my car.

Q. Could you just listen to the question carefully, please. Did you see the whole of the truck, including the trailers, pass in front of your car?

A. No.

Q. So when you last saw the truck, part of the trailer or a trailer was next to your car?

A. The truck cabin passed. It was between the end of the first trailer and the front of the second trailer. Then I moved to the left because it was too close.

Q. And you did not see the truck again after you moved to the

left?

A. I moved to the left and then moved to the right again. My car

was in a straight position briefly and then moved to the right and

then fell to a lower ground.

Q. You mean on the other side of the road when you say lower

ground?

A. I moved of to the left then moved to the right. The car was in a

straight line position briefly, then the car was sort of - I sort of lost

the control of the car. The car then fell to the lower ground.

...

Q. When you moved back on to the bitumen when you turned to the right you did not see the truck again. Is that your evidence? A. At the time I was anxious to turn the wheel back. I didn't see the truck." (T.73.23 - 75.5)

64. The plaintiff was asked a number of questions about whether she had spoken to Mr Addicott whilst a patient at the Royal Adelaide Hospital. The plaintiff said that she could not remember and that she had no clear recollection of events until she was in the Prince of Wales Hospital.
    
65. The plaintiff was asked some questions directed to when she first told anyone about a truck being involved in the accident. Implicit in the questions was a suggestion that she had only spoken about a truck being involved after she had seen a lawyer. On this issue, the plaintiff said:
    

"Q. And did you see him in the month of February after the

accident?

A. After they removed the tube from my neck I transferred from

acute to rehab. The lawyer rang me first and then came to see

me.

Q. He was the first one to make contact with you, is that what happened?

A. There was another patient like me. I met this patient in the gym. That patient saw me like that. He asked me what happened to me. I told him about my situation. He said he had a lawyer representing him in a case. I then asked him for his lawyer's phone number. He didn't give it to me and later the lawyer rang me. So I thought he must have told my situation to the lawyer." (T.72.20 -.30)

It is clear from exhibit 3 that by 13 February 2009 the plaintiff had consulted a solicitor.

66. To rebut the suggestion of recent invention, evidence was given by Dr Monica Ling, a rehabilitation specialist, who treated the plaintiff after her admission to the Prince of Wales Hospital. Dr Ling's parents were Chinese and she is able to speak a little Mandarin. The date when this conversation took place is not clear. The range of dates is between the middle of January until early February 2009. Dr Ling's evidence concerning the conversation was:
    

"Q. Using your best Mandarin, did you ask her something?

A. Yes.

Q. And translating your own question into English, how did you

commence the conversation?

A. I asked her what were the circumstances of her car accident.

Q. Did she respond?

A. Yes. To which she replied she tried to swerve to avoid an

oncoming truck, the opposite direction.

Q. Did she say anything else about the circumstances of the

accident?

A. No." (T.112.26 -.35)

"Q. Your recollection of this conversation when Ms Peterson mentioned a truck is quite clear?

A. Yes.

Q. And you are crystal clear that she mentioned a truck coming in the opposite direction?

A. Yes." (T.115.8 -.14)

67. I was most impressed with Dr Ling as a witness and I have no hesitation in accepting her evidence as not only being truthful, but accurate.
    

The evidence of Ms Deng

68. The only other witness to the accident was the plaintiff's sister, Ms Deng. Like the plaintiff she was born in Shenyang in China and her principal language was Mandarin. She was born in April 1958. She was married to a Frenchman and lived in France with permanent residency status. She said that one of the reasons they were driving to Darwin was to visit a Chinese friend of hers. She gave her evidence through a Mandarin interpreter.
    
69. Ms Deng's evidence concerning the accident was:
    

"A. I was reading a Chinese newspaper and then at some time I felt the shaking of the car.

Q. I will ask a question, if I may. At the time you felt the shaking of the car were you still reading the newspaper?

A. Yes, I, I thought it was just a, a normal passing of another vehicle so I didn't look outside.

Q. Well, after you felt the shaking what did you next become aware of?

A. At the time I was still reading the paper and then I heard a scream from my sister. Now I saw a truck outside, I saw a truck in front of us. I only saw the, the back of the truck.

Q. Which window were you looking out of? The front window, the side windows? Where were you looking when you saw the truck?

A. The front window of the car.

Q. When you saw the truck what did you see? Could you describe it?

A. After I heard the scream from my sister I saw the back of the truck and the truck was somewhat slanted in some sort of angle and now I felt the car shook a couple of times and rolled over.

Q. When you saw the truck through the front window how far away was it from the body of the car in which you were travelling?

A. I can't tell you exactly how many metres, how many metres it was but it was very close. Maybe about two, three or four metres." (T.80.6 -.31)

70. Under cross-examination Ms Deng's evidence was:
    

"Q. You've told us as the car got close to where the accident happened you felt a shaking of the car. Do you remember telling us that?

A. Yes.

Q. Has it always been your clear memory that you felt a shaking of the car just before the accident?

A. Yes.

Q. But you told us the first you saw the truck was when it was ahead of your car. Was it straight in front of your car when you first saw it?

A. Not straight ahead. It was in an angled position.

Q. Do you mean angled to your left off the edge of the roadway? A. (Indicating).

COUNSEL FOR DEFENDANT: Has the witness indicated by her hand gestures what she wanted to say, is that what happened?

INTERPRETER: She indicated the truck front was towards the left side of the road, in that angle. The truck front was towards the side of the road, left side of the road.

(At the direction of counsel for the defendant Ms Deng drew a diagram of the truck indicating its direction.)

A. When I draw this picture I don't know how close our car was to the edge of the road. I'm just drawing the position of our car and the truck when I saw it where the truck was relative to our car.

Q. Is this diagram intended to show that when you first saw the

back of the truck the truck was still on the road?

A. Whose car, our car or the truck? (Question read.). Yes.

Q. And when you first saw the back of the truck you say you had a clear view of it?

A. Yes.

Q. Did you ever see the truck leave the road and go off on to the dirt to the left?

A. Then our car shook a couple of times and rolled over. I didn't see the truck any more.

Q. And before seeing the back of the truck in the position you've drawn you were not aware of it being on the roadway at all?

A. When the truck was passing us I didn't look. After I heard the scream of my sister I looked. The car was in front of us already.

Q. You did not hear the truck at all before you saw it in front of your car?

A. I did hear there was a noise. I thought it was just like a normal passing of another vehicle." (T.83.47 - 85.11)

71. Ms Deng then gave extensive evidence relating to the plaintiff's position in the overturned vehicle with particular reference to whether the plaintiff was restrained by a seatbelt and what, if anything, Ms Deng did in relation to the seatbelt and the plaintiff's right arm.
    
72. Although the details were not entirely clear, on 13 February 2009 Ms Deng signed a statement in the presence of a lawyer using an interpreter in the Mandarin language. That document was exhibit 3. It was accepted by the plaintiff's legal advisers that exhibit 3 was prepared for use in the plaintiff's case. It was also accepted that the statement was made while Ms Deng was still in Australia.
    
73. Exhibit 3 relevantly provided:
    

"STATEMENT IN THE MATTER OF QIER PETERSON DATED 13 FEBRUARY 2009

Statement of Su Li Elis Deng

...

5. On 2 nd November 2008 I was sitting in the back seat of her car, the passenger side travelling on a long straight road.

I was looking at a paper. My sister said this is where we produce opals.

I was half looking at the paper. I heard my sister scream and I looked up. I saw the back of a large truck.

The truck was very close to the car.

The car then overturned and I don't remember after that."

74. Ms Deng was cross-examined on the contents of exhibit 3.
    

"Q. And what has just been read to you is the truth?

A. I didn't lose conscious. I was very sober at the - at that time.

Q. In all the passage that has just been read to you in this document, is that the truth?

A. Something was incorrect. The part I don't remember after that is not correct.

Q. Is the rest of what has been read to you the truth?

A. Yes.

Q. There is no mention in those sentences about you feeling the car shaking, do you see that?

A. At the time, no-one asked me about that question. No-one asked whether I felt the shaking of the car, whether there was other vehicle passing our car.

Q. The truth is that it is not correct that you have always had a

clear recollection of feeling a shaking of the car just before the

accident?

A. I remember it clearly because I was sitting at the back, the car

was shaking.

Q. When the statement was taken, was a lawyer present with the

interpreter?

A. Yes.

Q. And he asked you questions in English which the interpreter interpreted into Mandarin and then you provided the answers to the interpreter in Mandarin?

A. Yes. Yes, but he didn't ask me those questions.

...

Q. What you have said in the statement is you don't remember what happened after the car overturned. You recall that was read to you a few minutes ago by the interpreter?

A. I didn't say I don't remember after the car turned over.

HIS HONOUR: Q. When the lawyer asked you how you got out of the car, how did you respond to him?

A. I said Graeme broke the window. He got out. I got out from the same place after him. I remember I might have stepped forward a step and - and got out from that same place where Graeme got out.

Q. That is what you told the lawyer at the time that the statement was prepared, is that what you are saying?

A. Yes.

COUNSEL FOR DEFENDANT: Q. See, I put it to you that the

truth is you do not remember what happened after the car

overturned?

A. I did remember. Even though I may not have remembered a

hundred per cent but - a hundred per cent details, but I remember

the most - most part of it.

Q. I put it to you what you have told the Court about what you saw about your sister's arm, where it was after the accident, how you say you moved it and how you say you released the seatbelt is something that is not true?

A. The truth, I moved her arm, I unbuckled her seatbelt. I tried to lift her. I couldn't because it hurt me when I tried to do that. I did move her arm." (T.101.17 - 102.43)

75. Evidence was led from three witnesses to rebut the suggestion of recent invention by Ms Deng. The first of those witnesses was a Mr Li Si Xin. Mr Xin was born in May 1967 in Wuhan, China. He had been in Australia for some years when in 2005 he was involved in a motor vehicle accident. As a result of that motor vehicle accident, he became a paraplegic. He used regularly visit Prince of Wales Hospital to see a doctor there. He had retained a lawyer in relation to his accident.
    
76. He gave evidence as to a conversation with Ms Deng. He could not remember the precise date but it seems to be early in February 2009. His evidence which was given through a Mandarin interpreter was:
    

"Q. And how did you meet Qier Peterson?

A. When I went there to see doctor I met her sister at an eating

place there.

Q. Do you remember the sister's name?

A. I don't remember her name but I know the person.

Q. And did you get talking to the sister of Qier Peterson?

A. Yes.

Q. And do you now have any recollection of the date of this

conversation?

A. I can't remember the date, I can't remember the date. I

remember the content of the conversation.

Q. In the conversation that you had with Qier Peterson's sister do you remember any discussion about Qier's accident?

A. Yes.

Q. And did the sister of Qier Peterson say something to you about how the accident occurred?

A. She told me that when the accident happened that there was a big truck behind and she tried to move away from the truck and the car overturned.

Q. Did you then offer any suggestions to Qier's sister?

A. She asked whether there was a case in this situation. It had been almost three months, whether it was, whether the time had passed to lodge a legal proceedings. I said no, my case was being processed. I could refer my lawyer to her.

Q. Did you do that?

A. Yes, I did.

Q. Did you meet Qier?

A. You mean the victim of the accident?

Q. Yes, the sick lady?

A. Her sister took me to the physio room to see her. She said to me about how she had, she had had thoughts of committing suicide. She, she was depressed. I told her to be strong. I had the same thoughts as well before.

Q. I think it is the case you didn't speak to the injured lady about how the accident happened?

A. I can't remember clearly. I spoke to her sister about it." (T.105.7 - 106.7)

77. Mr Xin was cross-examined about his conversation with Ms Deng:
    

"Q. And when you started talking to her was it your intent to give her some help?

A. Yes. Yes. I asked her how the accident happened, whether they looked for a lawyer. Then I suggested to her to look for a lawyer, to find a lawyer.

Q. Did she explain to you that she had trouble understanding the Australian legal system?

A. She was not clear on that. I wasn't familiar with it either. She, she said it was three months since the accident so I suggested her finding a lawyer.

Q. Did you explain to her that you had made a claim for damages

after your accident?

A. Yes, I mentioned it to her.

Q. Did you explain that in Australia it was necessary to sue somebody that had been involved in the accident before you could recover damages?

A. I only suggested for her finding my lawyer, for her to see my lawyer to discuss whether an action could be brought. I didn't say anything else.

Q. You say she mentioned something about a truck being involved in the accident with her sister. Was that after you had mentioned that she should see a lawyer?

A. She said this before she saw my lawyer. She talked about it before she met with my lawyer.

Q. When you were at the eatery, is that what you mean?

A. Yes." (T.107.9 -.38)

78. Ms Liu Cui Fang gave evidence. She was the friend that Ms Deng was intending to visit in Darwin. Her principal language was Mandarin, but she did have some knowledge of English. She was born in January 1967 and raised in Shenyang in China. It was in Shenyang that she became friends with Ms Deng. They both worked in the same clothing shop. Ms Fang came to Australia to live in June 2007. She gave her evidence through a Mandarin interpreter.
    
79. Ms Fang said that she learned of the accident indirectly and as a result telephoned Ms Deng on her mobile phone. Her evidence in relation to this conversation was:
    

"A. I can't remember the exact date. I think it was within one week or two weeks of the accident.

Q. When you spoke to Su Li you told her who you were. What

conversation did you have?

A. I told her who I was. I rang her, I asked her what was the

matter. I asked her what happened. She said they had a car

accident.

Q. Did you find out how Su Li was?

A. I asked her over the phone and found out what it was.

Q. Did she tell you anything about people being injured in the

accident?

A. She told me her sister was injured and her boyfriend was

injured.

Q. Did you ask or were you told by Su Li as to how the accident

happened?

A. I asked her what happened. She said, Qier's sister said she

was reading her newspaper, she felt a shaking of the car and she

heard a scream from her sister. She looked up, she saw a big truck.

Q. Did she tell you what happened after that?

A. No." (T.118.2 -.20)

80. Under cross-examination Ms Fang agreed that she had been first asked to give evidence in relation to this matter in the last month by the plaintiff's lawyer. She said that she had arrived in Sydney from Darwin the night before for the purpose of giving evidence. She denied that she had discussed with Su Li the conversation which she said she had on the telephone just after the accident. (T. 119.42)
    
81. In cross-examination Ms Fang said:
    

"Q. You have told us what you say Su Li said in this conversation about how the accident happened. I want you to tell us again what you say she said, using as best you can remember the words she actually spoke to you?

A. I rang Su Li and asked her how the accident happened.

Q. I want to know what words she spoke to you when you asked

her that question?

A. About the matter I became aware initially?

Q. You told us about a telephone conversation where you asked how the accident happened. I want you to tell us what words she spoke to you in answer to your question?

A. She said to me, "I was reading the newspaper, I felt the shaking of the car, I heard a scream from my sister and then the car - then I don't know anything else"." (T.120.8 - .37)

"Q. Madam, in this telephone conversation, when you asked Su Li how the accident occurred, did she say anything more about how the accident occurred than what you have told the Court today?

A. No." (T.122.15)

82. The final witness in this group was Mr Michel Elis, the husband of Ms Deng. He was born in 1940 and was a French citizen. His evidence related to a telephone conversation with Ms Deng. His evidence was:
    

"Q. How did you ring Su Li? Was it a land line or a mobile phone line that you called?

A. On the mobile.

Q. And did you speak to Su Li?

A. Yes.

Q. Emotionally, how was she?

A. She was crying. She was very emotionally upset.

Q. Do you now know the date in France when you telephoned Su Li in Australia?

A. 4th of November 2008

Q. As at 2008, when you and Su Li would speak to each other at home, which language would you use?

A. In French and sometimes in Chinese.

Q. You have a little Mandarin?

A. Yes, just a little.

Q. When you rang Su Li on 4 November 2008, in which language or languages did you speak?

A. Little bit of each, French and Chinese.

Q. Did you attempt to ascertain whether Su Li was hurt?

A. I just simply say, "Look, how are you feeling? How are you?" and she said, "Oh, yeah, I am - I am all right. I am all right".

Q. Did she tell you about Qier?

A. She - she said that Qier, or Gier, just wasn't well at all.

Q. Did you ask Su Li how the accident happened?

A. It was rather she who volunteered the information about the accident.

Q. When she volunteered that information, what did she say to you?

A. She said that there was a very large car behind and then a very large car in front.

Q. And did she describe what happened to the car in which she was travelling?

A. I understood her to say that Qier's car was in a bad state and it fell.

Q. When she used this expression "a very large car", was she speaking in Mandarin or was she speaking in French?

A. In French." (T.124.13 -125.16)

83. Mr Elis then came to Australia. Upon his arrival, he again spoke to Ms Deng about the accident:
    

"Q. And did you speak to Su Li again about how the accident had happened?

A. Very little.

Q. Did you discuss with her again about the very large car?

A. Yes. In a subsequent conversation with Su Li she mentioned the word kache, which means truck in Chinese.

Q. Did you check up this through either the dictionary or the translation device?

A. No, I know the word, I don't have to look it up. I know a lot of words, vocabulary in Chinese." (T.125.43 - 126.3)

84. In cross-examination Mr Elis gave this evidence:
    

"Q. I wanted to know if an Australian lawyer has asked you about the conversation you told us you had with Su Li on the telephone on 4 November 2008?

A. Yes.

Q. And when did that lawyer speak to you about this

conversation?

A. I don't know. I can't remember. I don't have a precise date.

Q. Was it this year or last year? Can you assist in identifying

which year?

A. I believe it's probably this year.

Q. And was it in the last few weeks?

A. I had this conversation when I arrived in November.

Q. November this year?

A. This year. (T.127.1 -.17)

...

Q. You've told us that on 4 November 2008 in your telephone conversation with Su Li she told you something about how the accident happened in French?

A. A little bit of each language.

Q. Well, her French is very limited?

A. Yes.

Q. And your Mandarin is very limited?

A. Yes.

Q. Can you tell us what word she used in French and Mandarin when, as you say, Su Li told you something about the accident?

A. She said in French those words, there was a large car behind, a large car in front.

Q. And that's all she said to you about the accident when you spoke to her on the telephone on 4 November 2008?

A. She said that Qier was driving. (T.127.27 - .45)

Q. About the accident, was that all that was said?

A. She was crying a lot and all I could hear was words between

sobs.

Q. All you could make out about what she said about the accident

is what you have told us?

A. Yes, that's all she mentioned about the accident.

Q. And when you came to Australia you said you had a conversation about how the accident happened but she told you very little?

A. Correct.

Q. And was the first time you have been asked to recall what she told you when you came to Australia about the accident was when you spoke to a lawyer in November?

A. Yes.

Q. When she told you something about this accident when you came to Australia, was she talking in French or Mandarin?

A. A bit of both with the help of the dictionary.

Q. What words did she speak to you when you had come to Australia when she told you very little about the accident?

A. We were just passing the dictionary backwards and forwards basically to try and make one another understand what happened.

Q. Did you understand what she was trying to say to you?

A. More or less. I understood that a truck was overtaking and then afterwards the car was sort of turned over." (T.127.1 -128.29)

85. Leaving aside the evidence which was led to rebut recent invention, there are some real difficulties with the evidence of Ms Deng as to what she observed at the time when the accident occurred. In saying that, I appreciate that language difficulties prevented Ms Deng from providing a statement to the police at the accident scene or subsequently. While it is known that two French speaking tourists were the first persons at the accident scene, the evidence is silent as to whether Ms Deng said anything to them about how the accident occurred and neither of them gave evidence in the proceedings.
    
86. The most obvious difficulty with the evidence of Ms Deng generally is the contradiction between the evidence she gave at trial concerning what occurred at the accident scene after she had extracted herself from the motor vehicle and what she said in exhibit 3. Exhibit 3 was prepared approximately three and a half months after the accident when one would have expected Ms Deng's recollection to have been better than it was at trial. Ms Deng says that exhibit 3 is not correct and that she did not say that she could not remember anything after the car overturned. This is despite the fact that exhibit 3 was prepared with the assistance of a Mandarin interpreter in the presence of a lawyer.
    
87. Ms Deng says that she explained to that lawyer at the time how she had extracted herself from the car (T.102.20). I do not accept that if a lawyer acting for the plaintiff had been provided by Ms Deng with the detail of what occurred after the accident at the accident scene, he would not have made sure that this was recorded on exhibit 3. I cannot think of any reason why such a lawyer would not do so. It follows that I do not accept that Ms Deng explained to the lawyer at the time she signed exhibit 3 how she had extracted herself from the Subaru.
    
88. I am satisfied that when exhibit 3 was signed by Ms Deng she in fact had no recollection of what occurred after she had extracted herself from the motor vehicle. Some support for that comes from the evidence of Ms Fang at T.120.37 where Ms Deng is said to have finished her description of the accident with the words "Then I don't know anything else". There was no evidence or any suggestion that at some time subsequent to 13 February 2009, Ms Deng regained a recollection of what occurred at the accident scene after the accident.
    
89. I appreciate that just because Ms Deng's evidence as to what happened after she got out of the Subaru is not reliable, does not necessarily mean that her evidence as to the sequence of events leading up to the accident and seeing the back of a truck is also unreliable. Nevertheless, the rejection of her detailed evidence concerning removing the plaintiff's seatbelt and moving her arm, must inevitably lead a fact-finder to be sceptical of other evidence which is of a controversial nature and which benefits the plaintiff.
    
90. It is implausible that, had Ms Deng experienced a shaking of the vehicle shortly before the accident occurred, she would not have referred to that fact in exhibit 3. When one takes into account some of the extraneous detail in exhibit 3, e.g. the reference to the mining of opals, one would have thought that a relevant piece of information such as the shaking of the car would have been included. Ms Deng's explanation that she made no reference to the vehicle shaking because she was not specifically asked about it is unsatisfactory in circumstances where she was making a statement for a lawyer concerning her recollection of events leading up to the accident.
    
91. It is also implausible that if a large articulated vehicle passed the Subaru so as to cause it to shake, Ms Deng would not at the very least have looked up from her magazine. She was a visitor to Australia and being passed by such a vehicle would not (one might think) have been a familiar occurrence for her.
    
92. The failure of Ms Deng to look up when she felt the buffeting effect is all the more difficult to accept when apparently the plaintiff had accelerated the Subaru and there would have been a shadow over the car, together with a significant level of sound, as the articulated vehicle passed. If, as the plaintiff said, the articulated vehicle had sounded its horn (almost certainly a loud air horn), this was another reason why Ms Deng would at the very least have looked up from her magazine to find out what was happening.
    
93. I also find the sequence of events described by Ms Deng at trial to be improbable.
    
94. Ms Deng's evidence was that she felt shaking, heard a scream and looked up to see the rear of a truck approximately 4 metres in front of the Subaru. If the plaintiff did scream (Ms Deng is the only person to say so), this would only have occurred when she realised that the Subaru was out of control, i.e. it had already returned to the road and was not responding to the plaintiff's efforts to steer it. The expert evidence, to which I will refer in more detail later, made it clear that by this time any passing truck, articulated or otherwise, would have been well clear of the Subaru at a considerably greater distance to its front than 4 metres. This is based on the speed at which a truck would have to be travelling in order to pass the Subaru. Since it would have taken a road train at least 10 seconds to have passed the Subaru, it is difficult to accept that Ms Deng would not have looked up during that period, particularly if there had been some shaking of the Subaru during the first few seconds of that passing manoeuvre.
    
95. Ms Deng's evidence as to the plaintiff screaming is in direct conflict with that of Mr Addicott. While I have found that Mr Addicott did not see any other motor vehicle before the accident occurred, there is no reason to disregard his evidence as to how the Subaru came to roll over. It is his evidence that the car felt as if it were on ice, which caused him to ask the plaintiff "Are you okay?" (T.25.2)
    
96. Accordingly, I do not accept that Ms Deng's evidence as to the sequence of events leading up to the accident and as to seeing the back of a truck is reliable.
    
97. Before leaving the evidence of Ms Deng, it is necessary to consider the evidence of Mr Xin, Ms Fang and Mr Ellis, who were called by way of corroboration.
    
98. An initial problem with their evidence is that nothing was led in chief or re-examination from Ms Deng in relation to any of the conversations. This is surprising when it was known from the defendant's DCM document that the absence of a contemporaneous reference to another vehicle was important and when it must have been known from the cross-examination of Ms Deng that this was a most significant issue in the trial.
    
99. While it was open to the defendant to require Ms Deng to be recalled and to be cross-examined as to these conversations, it was not obliged to do so. It was necessary for the plaintiff to provide an explanation for why this evidence was not led. In submissions the explanation offered was that of an oversight by counsel.
    
100. I accept, of course, this explanation by counsel and it is common knowledge that such oversights do occur. Nevertheless, I am left with the impression that such an oversight is more likely to occur where counsel only becomes aware of such information at a late state in the trial. There also remains the difficulty that Ms Deng was never tested in cross-examination in relation to these conversations. This is important because there are problems with each conversation.
     
101. Mr Xin's evidence refers to a conversation which occurred at least three months after the accident. His evidence as to the conversation is somewhat different to that of the plaintiff. It was the plaintiff's evidence that she met Mr Xin in the gym of the hospital and that she told him about her "situation". He then arranged for his lawyer to contact her (T.72.25).
     
102. Mr Xin's evidence was that he had met Ms Deng and not the plaintiff and that the meeting had occurred at an "eating place" at the hospital. It was his evidence that Ms Deng told him about the accident not the plaintiff. To the extent that Mr Xin had a conversation with the plaintiff, it was a conversation in the physio room directed to her being depressed because of her condition (T.106.1).
     
103. The description of the accident which Mr Xin attributed to Ms Deng differs from the evidence which Ms Deng gave as to her observations leading up to the accident. It also differs from the contents of exhibit 3. He says that he was told by Ms Deng that there was a big truck behind, the plaintiff tried to move away from the truck and the car overturned. If this is an accurate description of what Mr Xin was told by Ms Deng, she could only have obtained this information from the plaintiff since all she saw was the back of a truck. If that is so, there is no evidence from either the plaintiff or Ms Deng about any such conversation between them during which the plaintiff passed on that information.
     
104. These unexplained anomalies in the evidence of Mr Xin cast some doubt on its reliability. Even if Mr Xin is accurate in his recollection of the date and what he was told concerning the accident by Ms Deng, this conversation could not be regarded as contemporaneous with the accident. By this time the extent of the plaintiff's injuries was clear and no doubt consideration was being given to whether a claim could be brought on her behalf.
     
105. Ms Fang's evidence, if accepted, would certainly be regarded as contemporaneous. The telephone conversation which she says she had with Ms Deng occurred within two weeks of the accident. Unfortunately I found Ms Fang to be unimpressive as a witness. She appeared to be very ill at ease when giving her evidence. This, of course, might merely have been nervousness.
     
106. She agreed that she had been first asked to turn her mind to this conversation by the plaintiff's lawyers in the weeks leading up to the trial, i.e. approximately 2 years after the conversation took place. Although she denied speaking to Ms Deng about the conversation, it was clear from the evidence that she had done so. Her evidence was in almost identical terms to those used by Ms Deng to describe her observations leading up to the accident. Ms Fang agreed that she had arrived in Sydney the night before she gave her evidence and had spoken to Ms Deng that night. Because of the similarity of her evidence to that of Ms Deng, I find that they must have discussed the evidence she was going to give, probably on the night of her arrival.
     
107. Apart from that concern, there is an inherent improbability in Ms Fang's evidence as to what Ms Deng told her about how the accident occurred. Both in chief and in cross-examination (T.118.89, T.120.35) her evidence on this issue reads as a summary of the relevant parts of Ms Deng's evidence, i.e. "I was reading a newspaper etc.".
     
108. If Ms Fang in fact had such a conversation in the course of which she asked Ms Deng "What happened?" one would have expected a response along the lines of "A large truck forced our vehicle off the road causing it to overturn" or something similar. It is incredible that a person in Ms Deng's position would give a response to that question such as "I was reading a newspaper, felt a shaking of the car, heard a scream from my sister and looked up and saw a big truck".
     
109. I am not satisfied that a conversation took place between Ms Deng and Ms Fang as set out in Ms Fang's evidence. I do not regard Ms Fang as providing any corroboration for the evidence of Ms Deng.
     
110. Mr Elis gave evidence with the assistance of a French interpreter. There was nothing in the demeanour of Mr Elis to indicate that he was doing other than telling the truth. Unfortunately, he appeared to have considerable difficulty in understanding and answering relatively simple questions which were put to him. The interpreter was an experienced and competent interpreter in the French language, and there was no apparent reason why Mr Elis experienced such a difficulty but it was obvious throughout his evidence that he did so.
     
111. Under cross-examination Mr Elis accepted that in November 2008 he and Ms Deng had considerable difficulty in communicating with each other and used a patois of French and Mandarin in order to do so. As with Ms Fang, Mr Elis had first been asked to turn his mind to the conversation with Ms Deng by the plaintiff's lawyers at some time in November 2010, i.e. two years later.
     
112. The evidence of Mr Elis as to what he was told by Ms Deng, while being consistent with the presence of another vehicle, was inconsistent with the evidence of Ms Deng as to what she experienced and saw at the time of the accident. If the evidence of Mr Elis is accurate as to what he was told by Ms Deng, it is not clear whether she was purporting to say what she saw or what she had been told by the plaintiff. Given the early time at which this conversation is said to have taken place, i.e. within days of the accident, it is unlikely that Ms Deng could have discussed the matter with the plaintiff since the evidence strongly suggests that the plaintiff was unable to communicate with anyone at that time.
     
113. Another difficulty with the content of the reported conversation, i.e. "a very large car behind and then a very large car in front", is that it is not really responsive to an inquiry as to how the accident happened. It says nothing about how the accident occurred. Nevertheless, that was all Mr Elis was told about how the accident occurred, except for the additional information that the plaintiff was driving.
     
114. While I accept that Mr Elis was doing his best to provide assistance to the Court, the problems with his evidence were such that I am not satisfied as to its reliability. This is particularly so in relation to his last answer in cross-examination (T.128.28) which was in summary form and was inconsistent with his earlier evidence as to what he was told. This response looks very much like a later reconstruction. I am not satisfied that the evidence of Mr Elis provides corroboration for that of Ms Deng.
     

Was there another vehicle involved in the accident

115. There were a number of differences between the evidence of the plaintiff, Mr Addicott and Ms Deng as to what happened at the time of the accident. While one would expect that there would be differences in recollection, the differences in this case are so stark as to raise a real question as to whether another vehicle was involved in the accident. This is particularly so when consideration is given to the inconsistencies within the plaintiff's evidence as to how the accident occurred.
     
116. I have already concluded that Mr Addicott did not observe another vehicle. That fact alone is most surprising if in fact a large articulated vehicle passed the Subaru immediately before the accident.
     
117. The plaintiff was the only one to see a big truck approaching 50 - 100 metres from behind. The plaintiff was the only person to give evidence about the Subaru accelerating to about 100 kph. The plaintiff was the only person to see the articulated vehicle pass the Subaru at a distance of about 1.5 metres away. The plaintiff was the only person to hear the truck sound its horn. If these events occurred, it is difficult to accept that neither Ms Deng nor Mr Addicott was aware of them.
     
118. The plaintiff and Mr Addicott described the Subaru moving to the left of the highway and partially onto the shoulder of the road. The plaintiff said that she did this to avoid a collision with the rear of the truck. Implicit in this evidence is the proposition that the truck had already passed. Earlier the plaintiff said that she had commenced moving to the left of the highway while the truck was still behind her after it had sounded its horn. The plaintiff and Mr Addicott gave evidence that she then drove or swerved back onto the road. While the plaintiff did not provide the same detail as Mr Addicott, her evidence is consistent with his, i.e. that when the car returned to the highway, it was not under control and eventually turned over.
     
119. The plaintiff was the only person to describe the truck, which she said was very big, very long and comprised a cabin and three trailers. Ms Deng saw only the rear of the truck.
     
120. In cross-examination, the plaintiff altered the sequence of events. Instead of moving to the left of the road to avoid colliding with the rear of the truck, she said that she moved the Subaru to the left when she heard the horn and the truck started overtaking her (T.65.49). This was a significant change to her evidence. Somewhat strangely, the plaintiff then described the movement of the truck as follows:
     

"The truck didn't move into the wrong side of the road. When it, the road had two lanes, one for each direction. When the truck overtook me I increased my speed and went forward and the truck overtook me but it stayed, the truck stayed in the right lane at all times." (T.66.19)

Subsequently the plaintiff said that she was not sure whether the truck crossed the middle line onto the wrong side of the road (T.66.41).

121. Under cross-examination the plaintiff said that the cabin of the truck was about one metre away when it passed her vehicle. There continued to be considerable confusion in the plaintiff's evidence as to whether she saw all three trailers pass the car and whether the car had already moved to the left as the trailers passed. She said that when she last saw the truck, the cabin was in front of her car. Shortly thereafter, she said that when she last saw the truck the section between the end of the first trailer and the front of the second trailer was two-thirds of a metre in front of the car.
     
122. The internal contradictions in the plaintiff's evidence as to the movement of the truck are consistent with a fragmented recollection as a result of everything happening very quickly. They are also consistent with confabulation in the sense that the plaintiff had no real recollection of any articulated truck passing the car before the accident.
     
123. The plaintiff's description of events as the truck passed the vehicle cannot be reconciled with Ms Deng's evidence as to when she first sighted the truck. It is quite implausible that in the circumstances described by the plaintiff, Ms Deng's first observation of the truck was of its rear as it drove away in front of the Subaru. It follows that I do not accept Ms Deng's evidence to that effect and that I have concluded that she did not see a truck immediately before the accident.
     
124. This presents a major problem for the plaintiff. If there were an articulated truck, and it moved in the way described by her, i.e. overtook the Subaru in such a way as to force it in part to the western edge of the highway so that had the plaintiff remained on the highway she would have come in contact with the rear of the truck, how was it that neither Mr Addicott nor Ms Deng made any such observation of it? As already indicated, their explanations of thinking about a difficult surveying problem and being engrossed in reading a magazine, are inconsistent with the plaintiff's evidence as to what happened and are inherently implausible.
     
125. One also has to take into account the internal inconsistencies in the plaintiff's evidence to which reference has already been made. While a benign interpretation can be given to those inconsistencies, when taken with the absence of any reliable observations by Mr Addicott and Ms Deng, I have concluded that the plaintiff's evidence on this issue should not be accepted. I do not accept the plaintiff's evidence as to how the accident occurred and I do not accept the plaintiff's evidence as to the presence of a truck being driven in the manner she described immediately before the accident.
     
126. In reaching that conclusion, I have taken into account the evidence of Dr Ling. In one respect this evidence provides strong support for the plaintiff's case. Dr Ling was clearly independent and was an impressive witness. Her evidence is consistent with there being another vehicle involved in the accident.
     
127. The difficulty for the plaintiff is that Dr Ling did have a knowledge of Mandarin and was very definite as to what the plaintiff told her, i.e. that there was a truck travelling in the opposite direction which forced the plaintiff's vehicle off the road. If that is an accurate record of what the plaintiff told her, it is quite inconsistent with the plaintiff's evidence at trial.
     
128. The plaintiff cannot have it both ways. If the Court is to accept Dr Ling (as I am prepared to do) the Court should accept her as being an accurate witness. There is no basis for the Court to speculate, as it has been invited to do, that Dr Ling only partially understood what she was told by the plaintiff because of language difficulties. Dr Ling struck me as the sort of person who would have made it clear to the Court if there were any problem or ambiguity in her understanding what the plaintiff said.
     
129. On the contrary, the final question and answer put to Dr Ling was:
     

"Q. And you are crystal clear that she mentioned a truck coming in the opposite direction?

A. Yes." (T.115.14)

Accordingly, Dr Ling's evidence does not overcome the difficulties which I have identified in the plaintiff's evidence.

130. There was expert evidence at trial but that expert evidence was not of a kind as to overcome my rejection of the plaintiff's evidence. It was equally consistent with an articulated truck passing the plaintiff's car as with there being no other vehicle involved in the accident.
     
131. The two experts who gave evidence were Grant Johnston, a chartered professional engineer with a particular interest in motor accidents, and Christopher Hall, a mechanical engineer with a particular interest in motor vehicle accident reconstruction. The evidence of those experts was taken concurrently.
     
132. In their joint report (exhibit A), question 6.3 and its response was as follows:
     

"6.3 Is it possible to say (and if so, please do) whether the loss of control of the Subaru indicated by the northern set of tyre marks would be more consistent with:

6.3.1 The Subaru being forced off to the left of the bitumen by an unidentified vehicle;

6.3.2 The Subaru travelling off the left of the bitumen during a period of driver inattention;

6.3.3 The Subaru driver swerving to avoid an object (not being a vehicle) or an animal on the roadway; or

6.3.4 The Subaru drifting onto the incorrect side of the roadway during a period of driver inattention?

A. All of the above explanations are consistent but on the basis of the physical evidence alone (ignoring the statements) it is not possible to say which is more likely."

Was there evidence of negligence

133. There was evidence from the experts concerning what was a safe distance between a car such as the Subaru and a large articulated vehicle overtaking it.
     

"HIS HONOUR: Perhaps I'm not making myself clear and that's my fault, not yours. What troubles me is one of the allegations of negligence is that this truck, be it one of those three types, in carrying out the overtaking manoeuvre, was too close to the overtaken vehicle so as to cause the driver to get into difficulty and then roll, as we know occurred. I don't have any direct expert evidence and perhaps it is not a matter of expertise, as to, for the truck driver carrying out that manoeuvre, how close one would need to be to render that overtaking manoeuvre unsafe, and if it varies from truck to truck, I would be grateful to know that, that is, of the three trucks we are considering.

WITNESS HALL: In a way it is not at all - it is not easy to determine what that separation might be. What we can say is, unless the vehicle was within half a metre of each other, the buffeting is not going to cause a loss of control. So we are then talking about what did cause the loss of control. And that would seem to then, if the separation was greater than half a metre, that would suggest that it has been driver input that has caused the loss of control. It is then difficult to ascertain, because each driver is different, what would be an unsafe separation between the vehicles.

HIS HONOUR: Are we agreed between you both that if it was half a metre, that is just too close for a big truck, be it a B-Double, a double trailer or a triple trailer?

WITNESS JOHNSTON: Yes, anyone I think would panic at that scenario.

HIS HONOUR: So outside of half a metre, then you'd say, Mr Hall --

WITNESS HALL: Your Honour, if we look at what a normal situation might be, a semi-trailer in the middle of its lane overtaking in the overtaking lane will sit about, on a roadway of this width, 3.5 metres, will sit about 1 metre away from the - sorry, half a metre from the centre line and then the other, the vehicle being overtaken sitting in the middle of its lane, will be about say 800 millimetres from the centre line. So under typical circumstances we are looking at about 1.3 metres separation and that's just a normal overtaking situation.

WITNESS JOHNSTON: Yeah, I think I agree with that and at 1.3 metres it is not inherently unsafe. I don't think it's the distance that's the issue. I would be not - I would be completely comfortable a truck overtaking me 1.3 metres away. My mother-in-law, on the other hand, would require me to slow down and move further left. She is not comfortable at all around trucks in that particular scenario. So the issue is not what the spacing was, but what the spacing becomes. I was always of the view the spacing was closing and closing and closing as they moved left. That gave them little opportunity but to move left. If she was uncomfortable with a metre or even uncomfortable with a metre and a half and then moved, she was in the middle of her lane on that assumption, gave herself the other .8 of a metre and drove on the left edge of the road, but then the truck moved to within another metre, then you moved again, that is more the issue that you are consuming her, the driver's fat margin of safety, because they are not comfortable with the valuation distance.

HIS HONOUR: That also would seem, if the distance is closing in that way, that would seem to presuppose some failure to take reasonable care that the truck driver is really not very conscious of what his trailers are doing.

WITNESS JOHNSTON: Yeah, the back of the vehicle's coming back too quick, if that perception is of course correct.

HIS HONOUR: Mr Hall?

WITNESS HALL: Yes, I agree with what Mr Johnston has said. In terms of what the trailer will be doing, at a speed of 100 kilometres an hour, 110 kilometres an hour, the trailer will follow the front of the semi-trailer very closely. It is not going to swing in any further than the prime mover would. So the path that the prime mover takes, the trailer will follow that very closely.

WITNESS JOHNSTON: Yeah, that is pretty much correct. Indeed, it is slightly outside. When you are at a high speed turn, you actually have a slightly positive off track, but it is only centimetres. " (T.231.44 - 233.12)

134. The importance of that evidence is that even on the plaintiff's version of events, there were real difficulties in establishing negligence on the part of the overtaking truck, if in fact there were such a truck. The plaintiff's estimate of distances varied in her evidence. In chief she indicated that when the cabin of the truck passed the Subaru it was approximately 1.5 metres away. Later she suggested 1 metre. On the expert evidence, the trailers would have followed the prime mover and would have followed the same track as the prime mover. That places considerable doubt on the plaintiff's evidence that she moved to the left of the road because she thought if she did not do so she might collide with the rear of the truck, i.e. the rear trailer.
     
135. Of course the plaintiff gave another version which had the Subaru moving to the left even before the truck had commenced overtaking. On that scenario, negligence on the part of the truck driver is even more difficult to establish.
     
136. If, contrary to my primary finding, there was an overtaking truck involved with this accident I am not satisfied that, on the basis of the plaintiff's evidence, negligence could be established against the driver of such a truck. The manoeuvre undertaken by the driver of the truck was a legally permissible one and would not be regarded as unreasonable in circumstances where the plaintiff was travelling at about 90 kph in an open roadway with a speed limit of 110 kph.
     
137. It is not clear from the plaintiff's evidence whether she moved to the left of the road after, during or before the truck passed. She gave all three versions in evidence. Her estimates of the distances between the overtaking truck and the Subaru varied between 1.5 metres and 1 metre. These were very general estimates made by reference to objects in the courtroom. On the plaintiff's evidence what seems to have occurred is that the plaintiff over-reacted to seeing the approach of the truck, causing her to drive off the highway and then lose control when she attempted to correct that manoeuvre.
     
138. The plaintiff's evidence of accelerating to a 100 kph when she saw the truck approaching in her rear mirror is a somewhat odd reaction. It is also consistent with the plaintiff over-reacting to the presence of the truck.
     
139. In any event, for the reasons indicated, the plaintiff is the only source of evidence as to the movement of the truck. Her evidence on this issue is vague in the extreme and to the extent that there is any clarity, it is internally inconsistent in significant ways. At no point, however, does her evidence indicate in the way described by Mr Johnston that the truck as it overtook the Subaru was getting closer and closer to it so as to take up or occupy the space available to the Subaru in its lane thereby forcing the Subaru to drive off the highway.
     
140. Although speed was particularised as an element of negligence, there is no evidence from the experts or from the plaintiff that the speed of the truck made any contribution to the accident. On the plaintiff's evidence the only basis upon which negligence could be established against the postulated truck driver was that in overtaking the Subaru he travelled too close to it.
     
141. Another difficulty for a court in making a finding against the suggested overtaking truck is that there is no clear evidence as to the location of the Subaru at any given time, and there is no clear evidence as to the location of the truck at any given time. What the Court is left with are conflicting estimates of the distance between parts of the truck and the Subaru at different and imprecise points in time. Such a variation in distance during the overtaking manoeuvre is not supported by the evidence of the experts set out above, i.e. the trailers would follow the track of the prime mover.
     
142. Accordingly, even if I accepted the plaintiff's evidence as to the presence of an overtaking truck immediately before the accident, her evidence is not such as would enable me to find negligence on the part of the driver.
     
143. Although it is not necessary for the Court to provide an explanation for how the accident occurred, the likelihood seems to be that postulated in the questions put to the experts, i.e. inattention on the part of the plaintiff as driver allowing the vehicle to move to the western side of the highway and then a loss of control when she tried to rapidly correct that movement by turning the steering wheel to the right.
     
144. Perhaps the most accurate description of what occurred is that given by Mr Addicott to Constable Agostino when she spoke to him at the accident scene:
     

"A. To the effect, not exact words, that he didn't know what had caused the accident, that one moment they had been driving along the road and the next moment they were rolling off it or involved in an accident. " (T.158.48)

145. It follows that there must be a verdict entered for the defendant.
     

The seat-belt issue

146. For completeness, I should deal with an issue that took up some time in the trial, i.e. whether the plaintiff was wearing a seatbelt at the time of the accident.
     
147. I have concluded that if the plaintiff were not wearing a seatbelt this would only have occurred by way of a deliberate choice on her part. I have reached that conclusion because of the noisy beep which would have continued for approximately 108 seconds if the driver were not wearing a seatbelt. Mere inadvertence or oversight could not explain it.
     
148. The plaintiff's evidence was unequivocal that she attached the seatbelt when she took over driving from Mr Addicott. Mr Addicott's evidence is to similar effect. He said that he had a clear recollection of the plaintiff attaching the seatbelt since it was necessary for him to adjust her seat to enable her to drive more easily. Ms Deng gave evidence to similar effect. The plaintiff said that she continued to wear the seatbelt until the accident occurred.
     
149. Mr Addicott said that after the accident he observed the plaintiff to be still within her seatbelt but that her right arm appeared to be pinned by the car. He could not remember exactly how the arm was pinned.
     
150. Ms Deng gave evidence, in considerable detail, as to how she unbuckled the plaintiff's seatbelt following the accident (T.81.38, 82.15, 91.31). She denied that the plaintiff's right arm was pinned (T.85.32). She said that she moved the plaintiff's right arm on a number of occasions and put a cushion and clothing underneath it (T.87.39, 88.37).
     
151. I have already indicated why I do not accept Ms Deng's evidence about what happened at the accident site after the accident. There are, however, some other difficulties with her evidence concerning unbuckling the seatbelt.
     
152. The expert evidence was that the moment the seatbelt was unbuckled it would have retracted as far as it was able. Having then retracted, it would not have been possible for the seatbelt to have been extended again. In other words, it would have been extremely difficult, if not impossible, for the plaintiff to have been extracted from the seatbelt in its partially retracted state. The fact that Ms Deng made no mention at all about the seatbelt retracting when she unbuckled it and made no mention of any difficulties she experienced as a result of the seatbelt becoming partially retracted, leads me to conclude that she did not in fact unbuckle the plaintiff's seatbelt following the accident.
     
153. Accordingly, I reject Ms Deng's evidence on this issue. This analysis confirms my earlier rejection of her evidence concerning her recollection of events which occurred at the accident scene after the accident.
     
154. The evidence of Constable Baker was equivocal on this issue. He had indicated on the accident report form that the plaintiff was wearing a seatbelt. He was, however, unable to recall the basis upon which he made that entry. He said that if the plaintiff had not been wearing a seatbelt, he would have expected much more trauma about her head, face and body (T.133.5). On the other hand, he had a clear recollection of her right arm being pinned (T.138.29, 139.3, 139.15, 142.32). Constable Agostino also had a recollection of the plaintiff's right arm being trapped (T.158.4, 158.8, 158.14). She did, however, say that if she had noticed that the plaintiff was not wearing a seatbelt, she would have recorded this (T.161.46).
     
155. The significance of the observations of Mr Addicott, Constable Baker and Constable Agostino that the plaintiff's right arm was pinned or trapped was that the experts agreed that if that were so, it would not have been possible to remove the seatbelt without cutting it. The photographs made it clear that the seatbelt was in its retracted position and had not been cut.
     
156. The photographs taken at the accident scene were inconclusive. They were consistent with the plaintiff's right arm being pinned by part of the car. They were also consistent with there being some space between the car and the plaintiff's right arm. One of the difficulties with the photographs was that it was not known exactly when, in relation to the sequence of events following the accident, they were taken. The photographs show what could be a cushion or clothing around the plaintiff's right arm, but do not provide sufficient detail so as to indicate whether the cushion/clothing was actually underneath the arm.
     
157. Both Mr Johnston and Mr Hall put forward, albeit somewhat tentatively, theories as to the interpretation of the photographs in relation to whether the plaintiff was wearing a seatbelt at the time of the accident. Mr Johnston opined that his theory was consistent with the seatbelt being worn while Mr Hall reached the opposite conclusion. I do not find it particularly profitable to analyse these competing theories.
     
158. As indicated, neither theory was put forward with great conviction and both theories depended upon the interpretation of photos which both experts agreed involved a significant risk of error.
     
159. The final piece of evidence on this issue was exhibit K. This was an ambulance report which noted that a seatbelt had been worn. The author of that report did not give evidence and the basis for that notation on the report is not known.
     
160. The significance of whether or not the plaintiff was wearing a seatbelt arises from s49(3) of the South Australian Civil Liability Act . That section provides that where a seatbelt is not worn, there will be a finding of 25 percent contributory negligence against the plaintiff. As with New South Wales law, the defendant carries the onus of establishing that a seat-belt was not worn.
     
161. On this issue I have concluded that the defendant has failed to establish that the plaintiff was not wearing a seatbelt. My reasons are these.
     
162. As I have already indicated, I found both police officers to be impressive witnesses, who were impartial and who were doing their best to assist the Court. In that regard, I accept the comment by Constable Agostino that if she had noticed that the plaintiff was not wearing a seatbelt she would have made a note of it. It seems to me that there is a certain practical common sense in the evidence of Constable Baker that had the plaintiff not been wearing a seatbelt, he would have expected to see far more trauma about her head and the rest of her body.
     
163. I also found the evidence of Mr Addicott on this issue to be persuasive. One of the matters which counted against my acceptance of his evidence as to the existence of a truck is the very reason why I accept his evidence on this issue. I found Mr Addicott to be a rather meticulous and careful person. I accept that he would not have allowed the plaintiff to drive without wearing a seatbelt.
     
164. I accept that there is a significant body of evidence to the effect that the plaintiff's right arm was pinned in some fashion beneath the car but that evidence is of a general kind and does not indicate the extent to which the right arm was pinned or trapped. For the reasons already indicated, the opinions of the experts based as they are on the photographs and on unestablished assumptions are not decisive. It would, of course, be quite unsafe for the Court to try to reach its own conclusion based on the photographs.
     
165. On balance, therefore, I have not been persuaded that the plaintiff was not wearing a seatbelt at the time of the accident. Accordingly, the defendant has not established contributory negligence on this basis.
     

Conclusion

166. I make the following orders:
     

(1) There will be judgment for the defendant.

(2) The plaintiff is to pay the defendant's costs.

(3) I grant leave to the parties to make further submissions as to costs, should they wish to do so.

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