CARROLL (BY HIS TUTOR CARROLL) v THE NOMINAL DEFENDANT [1998] NSWCA 52

CARROLL (BY HIS TUTOR CARROLL) v THE NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and BEAZLEY JJA 23 April 1998, 23 April 1998

[1998] NSWCA 52

Mason P The appellant, Gary Carroll, was seriously injured in a motor vehicle accident which occurred on 2 November 1990 in the early hours of the morning. He was in a Torana motor vehicle that had become unregistered through lapse of time some two or three hours previously. He was accompanied by three friends, Jason Jones, Murray Spencer and Darren Nolan.

The issue in the trial was who was the driver of the vehicle. It was the plaintiff's case, and I will refer to Mr Carroll as the plaintiff, that the driver was Mr Jones. It was the case of the Nominal Defendant, the respondent in this Court, that the driver was the plaintiff.

The car in which the accident occurred belonged to Mr Jones. It had been picked up during the afternoon of 1 November 1990 and thereafter a very considerable quantity of alcohol was consumed by Jones, Spencer and Nolan at different locations. Everything indicates that Mr Jones was very severely intoxicated and aware of this fact.

At about 1.25am on 2 November 1990 the Torana with its four occupants was observed by Sergeant Higgins travelling along the Londonderry Road Richmond at a speed of 114 kilometres per hour. The car was pulled over. The driver was the plaintiff. He was issued with two traffic infringement notices, one for exceeding the speed limit by over thirty kilometres per hour, and the second for driving an unregistered motor vehicle. He gave a false name of Shane Anthony Doyle on this occasion.

Mr Jones was also issued with traffic infringement notices, the first for permitting the plaintiff to drive an unregistered motor vehicle and the second for permitting the plaintiff to drive an uninsured motor vehicle. The reason given by Mr Jones to Sergeant Higgins was that he had allowed the plaintiff to drive because "I'm too pissed".