PARSONS v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and POWELL JJA 24 March 1994, 24 March 1994 [1994] NSWCA 249 Negligence — Sufficiency of evidence — Motor vehicle collision allegedly caused by unidentified motor vehicle — action against Nominal Defendant- Whether failure of vehicle to stop provides evidence of negligence. Powell JA On Friday 21 October 1983, at about 11 pm, a motor vehicle which theAppellant, Mr Parsons, was driving in a Northerly direction in Marsden Road, Eastwood, collided with the rear of another motor vehicle which was, at the time, parked in a kerbside lane on the Western side of the carriageway of Marsden Road. As a result of the impact, so Mr Parsons says, he was thrown forward and his head hit the steering wheel rendering him unconscious. Thereafter, Mr Parsons was taken by Central District Ambulance to Westmead Hospital, where, after a number of comparatively minor injuries were observed, and some minor treatment was accorded to him, he was discharged but advised to consult his local medical practitioner. On 25 January 1985, Mr Parsons, who claimed that the collision was caused by the actions of an unidentified motor vehicle, caused to be filed in the District Court an Ordinary Statement of Claim seeking, pursuant to the provisions of s30(2) of the Motor Vehicles (Third Party Insurance) Act, 1942, ("the Insurance Act'') to recover from The Nominal Defendant damages for the injuries which he claimed to have suffered in the accident. In his Statement of Claim, Mr Parsons alleged (inter alia): "2. At about 11.05 pm on Friday the 21st October, 1983, the plaintiff was driving his motor vehicle being a Renault sedan registered number MLQ 107 in a northerly direction in lane 1 Marsden Road, Eastwood in the State of New South Wales. 3. After rounding a bend and checking that it was safe to change lanes the plaintiff proceeded to move from lane | into lane 2. After about one half of the plaintiff's vehicle had moved into the said lane an unidentified motor vehicle travelling in the same direction sounded its horn whereupon the plaintiff swerved back into lane 1. 5. It is alleged that as a result of such conduct on the part of the driver of said unidentified motor vehicle the plaintiff's motor vehicle collided with the rear of motor vehicle registered number JDW 795. 6. The said accident was caused by negligence on the part of the driver of the said unidentified motor vehicle and the driving, management and control of the said motor vehicle. PARTICULARS OF NEGLIGENCE 7. The driver of the said unidentified motor vehicle was guilty of negligence in that he: (i) Failed to keep any or any proper lookout; 2 UNREPORTED JUDGMENTS (ii) Failed to keep his motor vehicle under any or any proper control; (iii) Drove his motor vehicle at a speed which was excessive in the circumstances; (iv) Failed to heed the presence of the plaintiff on the said road. 8. By reason of the negligence above mentioned the plaintiff was injured and suffered and will continue to suffer loss or damage. PARTICULARS OF INJURIES: 9. The plaintiff sustained the following injuries: (i) Laceration to forehead requiring sutures; (ii) Lacerations to right knee; (iii) Pain in ribs. " The Amended Particulars under Pt12, R4A of the District Court Rules, which were filed on 23 January 1987 on behalf of Mr Parsons, were (in part) as follows: "1. INJURIES (A) Lacerations to forehead requiring sutures. (b) Lacerations to right knee. (c) Pain in ribs. (d) Loss of consciousness. (e) Fractured ribs. (f) Laceration to dorsum of right hand. (g) Injury to cutaneous nerve in forehead. (h) Head injuries. (i) Damage to balancing organ in ear. (j) Diffuse brain damage. 2. DISABILITIES (a) Frequent frontal headaches. (b) Scarring to forehead. (c) Scarring to right hand. (d) Scarring to right knee. (e) Numbness to skin over curved scar on forehead. (f) Permanent loss of sensation of curved scar on forehead. (g) Dizziness. (h) Forgetfulness. (i) Sharp and stabbing pains to the head. (j) Paroxysmal positional vertigo. (k) Impaired recent memory. (1) Irritability. (m) Excessive fatigability. 3. MONEYS WHICH THE PLAINTIFF HAS PAID OR IS LIABLE TO PAY (a) Chemists - past $30.00 Future - 50 cents per week for 20 years. Future operation - revision of curved scar on forehead $1,400.00 " In its Amended Notice of Grounds of Defence the Nominal Defendant, in addition to putting in issue all the allegations in the Statement of Claim, alleged: "5. Alternatively, the injuries, loss and damage set forth in the Statement of Claim (which are not admitted) were caused solely or in the further alternative were contributed to by the negligence of the plaintiff. PARTICULARS OF CONTRIBUTORY NEGLIGENCE (a) Failure to keep a proper lookout. URJ PARSONS v THE NOMINAL DEFENDANT (Powell JA) 3 (b) Proceeding at excessive speed in the circumstances. (c) Failure to steer and control vehicle so as to avoid an accident when danger threatened. (d) Attempting to change lanes when it was unsafe to do so because of vehicular traffic on the carriageway. (e) Driving a vehicle whilst affected by intoxicating liquor. " The significance of the last of the particulars of contributory negligence was that, at 1.50 am - that is almost three hours after the accident - while Mr Parsons was still at Westmead Hospital, a blood sample was taken, which blood sample, when later analysed, showed a reading of 0.098 g per 100 ml. The expert evidence, which was tendered at the hearing, was to the effect that, at the time of the accident, the likely concentration of alcohol in Mr Parsons' blood stood in the range of 0.126 to 0.153 g per 100 ml, the most likely reading being 0.139 g per 100 ml. One notes that, even if one took the lowest of the three figures to which I have just referred, the concentration of alcohol in Mr Parsons' blood would have been towards the higher end of the middle range of alcohol specified for the purposes of s4E of the Traffic Act, 1909 ("the Traffic Act"), while, if one took the highest of those figures, the concentration of alcohol would have been in the high range of alcohol specified for the purposes of s4E of the Traffic Act. The expert evidence further was to the effect that a concentration of alcohol of 0.139 mgs per 100 mls would have affected Mr. Parsons in the following way: "4. Regardless of his tolerance to alcohol, however, at a blood alcohol concentration of 0.139g/100ml, Mr Parsons' ability to drive a motor vehicle with safety would have been significantly reduced. Alcohol exerts its major effects on the structures of the brain responsible for balance and coordination. Alcohol reduces peripheral awareness as well as impairing speed and distance judgments. Also, the ability to successively divide attention between two or more inputs is significantly reduced, even at blood alcohol concentrations as low as 0.05g/100ml. 5. I note that Mr Parsons stated to Dr Rundle (10/4/85) that he collided with the rear of the stationary vehicle after avoiding a vehicle that was approaching in the opposite direction. Mr Parsons later stated to Dr Barclay (14/5/86) that he was forced into the rear of the stationary vehicle by a vehicle travelling in the same direction. Regardless of which scenario Mr Parsons has adopted to explain the collision, the fact is that in both his ability to perceive a potential collision, to process all the relevant information and to react quickly and in a sufficiently coordinated manner to avoid that collision would have been substantially reduced due to his intoxication." The proceedings came on for hearing before PJ Phelan DCJ on 22 August 1990, the hearing continuing into the next day, 23 August 1990, on which day His Honour, having adjourned for a time to enable him to consider the matter, dismissed the proceedings and entered a verdict for The Nominal Defendant. Despite the fact that, as I have earlier recorded, The Nominal Defendant, in its Amended Notice of Grounds of Defence, had put in issue all the allegations in the Statement of Claim, it appears that there may have been no real issue at the hearing, either, that the vehicle driven by Mr Parsons had not collided with the rear of a car parked in Marsden Road; or, that, immediately prior to that time, another car had passed Mr Parsons' vehicle; or, that, as required by s30(2)(a) Act, that there had been "due inquiry and search"; but, whether or not those matters were really in issue at the hearing, they were, in fact, found in Mr Parsons' favour by His Honour. 4 UNREPORTED JUDGMENTS The only witnesses who were called, at the hearing, to give any evidence bearing on the circumstances giving rise to the collision were Mr Parsons and a Mr Scott, a former constable of police, who had attended the accident scene some twenty minutes or so after the accident and who later interviewed Mr Parsons while he was at the hospital. Although, as His Honour pointed out in the course of his Judgment, there were some aspects of the evidence which would, or might, indicate that there had been other versions of the accident given by Mr Parsons, in the end his Honour proceeded on the basis that Mr Parsons was to be regarded as "an honest man", a view to which his Honour seems to have been led, at least in part, by the statement which had been taken by Mr Scott from Mr Parsons when at the hospital, in which statement Mr Scott had said: "T was travelling in lane 1 at approximately 40 to 50 KPH and attempted to change into lane 2 but a car sounded his horn so I moved back into lane 1 and in doing so I ran into the rear of car number JDOW795". But given that His Honour proceeded on that basis, it is to be observed - since Mr GB Hall QC who, with Mr C Heazlewood, appears for Mr Parsons on the Appeal, seeks to make much of it - that it does not follow that His Honour was obliged to accept the whole or, indeed, any significant part, of the evidence given by Mr Parsons at the hearing. On the contrary, as His Honour was at some pains to indicate in the course of his very careful assessment of the evidence, there were a number of aspects of Mr Parsons' evidence on critical matters which he found unacceptable. The case which Mr Parsons sought to make at the hearing was summarised by His Honour in the following way: "The plaintiff testified that he was at work throughout the day of the accident. He worked back until about 10.20 pm that evening, something which was not particularly normal but, by the same token, was not unique in his position as a foreman at his place of employment. He estimates that he drank five large cans of beer in the period which I take to be from around about the normal knock off time in the late afternoon (so, somewhere around about 4.30 pm or so) until he set out on his homeward journey at approximately 10.20 pm. It was on this journey home that he entered Marsden Road, Eastwood,.. two lanes run in a northerly direction and two lanes run in a southerly direction in Marsden Road. The thoroughfare is a well lit street with good vision available at night by means of fluorescent lighting. The weather was fine, the bitumen road surface was dry. The plaintiff was proceeding up a steep grade prior to his collision. The plaintiff described a bend through which he passed immediately prior to the accident as 'a long right hand bend'. The photographs - Exhibit J - support then Const Scott's description of the road as a slight curve. The plaintiff says that as he got on the straight road which he depicted in Exhibit J3 after manoeuvring the bend he saw the stationary parked vehicle some 80 metres or so ahead of him. He checked two of his three rear vision mirrors: one being the centre mirror, the other at his driver's door. Through these he saw nothing to his rear. I find it odd that exhibit K does not evidence either of those alleged side mirrors, nor does it evidence any marks indicating where they were previously lodged. The probability in my view is that there were no such mirrors in spite of the plaintiff's testimony to the contrary. After looking in the mirror, the plaintiff then indicated his intention to move to the right and changed lanes from lane one to lane two. He described this manoeuvring as 'steady gradual and not sharp'. URJ PARSONS v THE NOMINAL DEFENDANT (Powell JA) 5 When he was about 20 metres from the parked car at which a part or even half of his vehicle had traversed into lane two, the unidentified motor vehicle came past him. It blew its horn, he swerved and crashed into the parked vehicle. He alleges that he first saw the unidentified vehicle out of the corner of his eye virtually when it was alongside his vehicle. He considered that the other vehicle was approximately a 1970 make Holden car, being either an HT or an HG series. The plaintiff in my view, and contrary to the submissions of Mr Heazlewood, his counsel, does not give consistent testimony with respect to when he actually looked into his mirrors on his version. At parts of his evidence he puts this activity as he entered the straight road after rounding the bend - and at other parts - the activity seems to occur when he is forty to fifty metres away from the parked vehicle. He does not seem to have braked prior to impact nor does he seem to have attempted to move back into lane two after the unidentified vehicle passed him. One undeniable inference from exhibit K - the photographs of the car - is that the plaintiff's vehicle was substantially in lane one at point of impact." This case was then examined by His Honour in the following way: "T find that there are two broad interpretations of how the accident could have happened having excluded the possibility that there was no unidentified vehicle at all. The first scenario would exonerate the plaintiff completely of any contributory negligence and also implied negligence to the driver of the unidentified vehicle. This version would have the unidentified vehicle being completely out of vision when the plaintiff glanced at his mirror. Thus, in the variable distances given by the plaintiff after his mirror check, the unidentified vehicle travelled from out of vision, traversed the area between it and the plaintiff, and came alongside the plaintiff some 20 metres from the parked car. Its speed in those circumstances would have to be significantly more than double the plaintiff's estimate of his own speed - at fifty kilometres per hour. On one view of the evidence, the unidentified vehicle would have to be travelling in excess of 140 kilometres per hour. The only evidence concerning this speed comes from the plaintiff. At one point he describes the other car as "going fast'. At another point of his evidence - if my notes are correct - he described the speed of the vehicle as 'really quick - a lot faster than me'. The force of such evidence has to be weighed not only against the time period of the plaintiff's observation put by him at one to two seconds, and seemingly more likely to me to be of the lower end of that statement; but also by the fact that his mental faculties were undoubtedly impaired by alcohol at the time of the observation. I accept unreservedly Professor Starmer's evidence with respect of impairment. I find that overall scenario distinctly lacking in probability. The other scenario puts the unidentified motor vehicle within vision by the plaintiff, but for whatever reason not seen by him. Thus, assuming that there was no other motor vehicle behind him, the plaintiff indicated and commenced to veer to the right only to find the unidentified motor vehicle travelling a few inches from him to his side. In that scenario, Mr Russell - counsel for the defendant - submits that there is no negligence on the part of the unidentified motor vehicle. There is in that scenario no evidence of excessive speed. The vehicle sounded its horn thus warning of its approach. Further, it took evasive action as the plaintiff was - as he said - halfway into lane two. The unidentified motor vehicle must have moved considerably to its right to avoid, as it undoubtedly did, a collision with the plaintiffs vehicle. 6 UNREPORTED JUDGMENTS Mr Hazelwood (sic) - for the plaintiff- submits that the driver of the unidentified motor vehicle must have been in a position to see the parked car, and therefore must have been in a position to judge that the plaintiff would have to move into lane two. Being appraised of this situation, he should have slowed down instead of barging on cutting out the plaintiff's only available route. Implicitly, the unidentified motor vehicle was travelling too fast in the circumstances. I am not convinced of the undue speed for the reasons that I have referred to earlier. It is trite to say that the plaintiff must satisfy the Court on the balance of probabilities. In the absence of any expert evidence concerning the potential visibility of the unidentified vehicle's driver, I am asked to infer that he or she had the parked car within such vision at various stages between rounding the bend, and until the plaintiff veered into lane two. I find that I could not draw such an inference on the evidence available to me. Therefore, I am unable to find that the unidentified vehicle's driver was negligent. Technically, that ends the matter because there must flow from a finding a verdict for the defendant.. " This notwithstanding, against the possibility that the matter might - as it has done - proceed on appeal, His Honour turned to consider, first, the question of whether or not there had been "due inquiry and search" - a question which, as I have earlier indicated, he found in favour of Mr Parsons - and, then, the question of the damages, to which, if it had been otherwise, he would have found Mr Parsons' entitled. In respect, of this latter question, His Honour concluded that, had Mr Parsons been entitled to a verdict, an appropriate award would have been $55,000.00, which sum he calculated in the following way: "A: General damages $40,000. B: Interest on half of that sum at 7 and one half per cent - an amount for a rounded off figure of seven years - $10,500. C: Doing the best I can with the expenses for analgesics both for past and future, I allow $2,000. D: For future surgical revision of the forehead scar Dr Teh in exhibit G speaks of a sum of approximately $1,500. However, that is a report from 1985 - some five years ago. Doing the best I can with that figure and on the principle of Yammine and Kalwy I would allow $2,500 for this procedure. " Although, in his Amended Notice of Appeal, filed on 14 November 1991, Mr Parsons sought to raise seven grounds of appeal, in the written submissions which Mr Hall has provided for the assistance of the Court on this Appeal, those grounds of appeal were, in substance, reduced to three, they being: 1. His Honour was in error in failing to infer from the circumstance that the unidentified vehicle failed to stop after the accident, that the driver of that vehicle fled the scene because he was conscious that his careless driving had caused the accident; 2. His Honour was in error in finding that the suggestion that the unidentified vehicle was out of Mr. Parsons' vision when he looked in his rear vision mirror was improbable; and 3. His Honour was in error in finding that Mr Parsons' evidence as to when he looked in his rear vision mirror was inconsistent. In seeking to support the first of these grounds, Mr Hall first drew our attention to the provisions of s8(1) of the Traffic Act, which section is in the following terms: URJ PARSONS v THE NOMINAL DEFENDANT (Handley JA) 7 "8(1) Where, owing to the presence of a vehicle or horse upon a public street, an accident occurs whereby the death of or injury to any person, is caused, the driver or rider of every vehicle or horse concerned in the accident shall stop and give any assistance which may be necessary and which it is in his power to give." Having done so, he then drew our attention to the observations of Dixon CJ in Holloway v McFeeters ((1956) 94 CLR 470, 475 and 476) and to the later judgment of Ryan and Gummow JJ in Nominal Defendant v Morrison ((1992) 109 ALR 659 669). While I accept that, in an appropriate case, it would be open to a Judge to infer from "flight" a consciousness of guilt, and, on the basis of that inference, to hold that there had been negligence on the part of the relevant driver, it seems to me that, before such an inference - which, in any event, is only a permissible inference - might properly be drawn, he who seeks to have the inference drawn must first demonstrate an awareness, on the part of the relevant driver, of the accident from which it is said he or she had fled. Despite the vigour with which Mr Hall has pressed his submission that it was inescapable that the driver of the unidentified vehicle must have been aware of the accident, I remain to be persuaded that this was so, it following, in my view, that His Honour did not fall into error in not drawing the desired inference. The second of the grounds of appeal which I have recorded above is based upon what is said to have been His Honour's erroneous interpretation of the evidence and, in particular, his view as to the speed which the driver of the unidentified vehicle would have been travelling if the evidence were to be accepted. To support this ground of appeal, Mr Hall has provided to us a number of mathematical computations which he has expounded at some length. However, it seems to me that, while interesting, those calculations bear little relationship to the evidence which was given on the hearing, and, thus, do not provide any support for this ground of appeal. Far from it being the case that His Honour's view of what Mr Parsons would have needed to demonstrate if the unidentified motor vehicle was at the relevant time out of his vision being erroneous, it seems to me that His Honour's approach to this question was a correct one. So far as the third ground of error assigned to His Honour is concerned, I content myself with saying that, having read the various passages in Mr Parsons' evidence as well as the other passages to which our attention has been drawn by Mr Hall during the course of the hearing, I am quite satisfied that his Honour was correct in saying that Mr Parsons' evidence was inconsistent. In the event, I conclude, as did His Honour, that Mr Parsons failed at the trial to make out a case of negligence on the part of the driver of the unidentified motor vehicle, and, for that reason, I would propose that the appeal be dismissed with costs. Handley JA I agree. The Appellant sought to attack the decision of his Honour,Judge Phelan, on three principal grounds but, in the end, for reasons broadly summarised by Mr Justice Powell, I conclude that those three challenges failed. His Honour's decision was carefully reasoned and supported by evidence and, in the circumstances,the inevitable conclusion must be, in my view, that the appeal should be dismissed with costs. Sheller JA I agree. Handley JA The order of the court therefore will be: Appeal dismissed with costs. 8 UNREPORTED JUDGMENTS Appeal dismissed with costs. Counsel for the Appellant: GB Hall QC and CP Heazelwood Instructed by: Messner and Blunden (Pennant Hills) by their City Agents Watson Davey Counsel for the Respondent: AP Quinlivan Instructed by: Government Insurance Office of New South Wales