Blake v Gruber [2002] NSWSC 1131

New South Wales Supreme Court

CITATION : Blake v Gruber [2002] NSWSC 1131 FILE NUMBER(S) : SC 20357/95 HEARING DATE(S) : 23 - 25, 28 - 29 October 2002 JUDGMENT DATE : 28 November 2002

PARTIES : Roderick Andrew Blake - Plaintiff Natalie Louise Gruber - Defendant JUDGMENT OF : Simpson J

COUNSEL : AJ Bartley SC with CL Thompson - Plaintiff RR Bartlett with WM Fitzsimmons - Defendant SOLICITORS : Robert H Storey - Plaintiff Sparke Helmore - Defendant CATCHWORDS : claim for damages for personal injury - motor vehicle accident - prescribed concentration of alcohol - driver of the vehicle - direct evidence - circumstantial evidence - expert opinion evidence - injury patterns - reliance upon arrangement between parties - responsibility for own injuries - contributory negligence LEGISLATION CITED : Motor Accidents Act 1988 DECISION : Verdict for the plaintiff, reduced by 17.5% pursuant to s74 of the Motor Accidents Act 1988.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

28 November 2002

20357/95 Roderick Andrew BLAKE v Natalie Louise GRUBER

JUDGMENT 1 HER HONOUR: In these proceedings the plaintiff, Roderick Blake, claims damages for personal injury arising out of a motor vehicle accident in the early hours of 14 August 1993 at Boorowa in NSW. He alleges that he was a passenger in the motor vehicle, which was being driven by the defendant, Natalie Gruber. It is agreed between the parties that, if the plaintiff establishes, on the balance of probabilities, that the defendant was the driver of the motor vehicle, he is entitled to an award of damages. That is because there is undisputed evidence that, at approximately the time of the accident, there was present in the defendant's blood more than the prescribed concentration of alcohol (approximately .204, or in the range of .191 to .232 on one estimate, between .188 and .213 on another) and that, for that reason alone, it should be inferred that the accident was caused by her negligence: see Motor Accidents Act 1988, (the "MAA"), Part 6. 2 For the plaintiff's part, it is accepted that, if he succeeds in his claim, the resultant award of damages must be reduced by some proportion in accordance with s74 of the MAA. This is because he accepts that a finding of contributory negligence is appropriate – even inevitable – having regard to his knowledge, or constructive knowledge, of the defendant's intoxication. 3 The parties have agreed, subject to the assessment of the amount to be deducted pursuant to s74 of the MAA, on the quantification of damages should the plaintiff be successful. Accordingly, only one principal issue, and potentially one subsidiary issue, arise for determination. 4 The competing positions of the parties are simple and clear. Each alleges that the other was the driver of the vehicle at the time of the collision. A great deal of evidence was adduced with a view to establishing which of the two was the driver. Before coming to that evidence, it is convenient to outline broadly the relevant circumstances. A great deal of the evidence was uncontroversial. The background facts may be stated as follows. 5 The plaintiff was born on 17 March 1960. In August 1993 he was 33 years of age. He lived on and managed a farm called "Illyria", which was situated on Rye Park Road, Boorowa, about 12 or 14 kilometres east of the township of Boorowa. The farm was owned by a family trust of which the plaintiff was a beneficiary. The defendant lived on the adjoining property, "Buena Vista", the entrance to which is about three kilometres further east on the same road. In 1991 a romantic relationship existed between the plaintiff and the defendant and they adopted a practice of driving into town on Friday nights. Their usual destination was one of the four hotels in the town, most frequently the Boorowa Hotel, commonly known as "the top pub". It was their practice to drive together into town, usually in a Holden Rodeo utility registered in the name of the plaintiff's family trust, but to alternate the return driving with one of them designated as driver for the evening. This allowed the person who was not the designated driver to consume alcohol. The designated driver limited his/her consumption in accordance with road traffic requirements. 6 The romantic aspect of the relationship between the two came to an amicable end some time in 1993, before August. For about six weeks commencing shortly after the termination of the relationship, the plaintiff was absent from the district, working on a relative's property at Wallendbeen, forty five kilometres distant. He returned to "Illyria" about 10 August. He and the defendant arranged to go to Boorowa on the evening of Friday 13 August. 7 On that evening the defendant drove in her vehicle to the plaintiff's property. She was accompanied by two friends, Jane Gibbons and a woman called Amanda, whose surname did not emerge in the evidence. Thursday 12 August had been the defendant's birthday. In circumstances as to which the evidence is not entirely uncontroversial, and will therefore not be here outlined, the four travelled into Boorowa in the Holden Rodeo utility. The plaintiff drove. They went to the Boorowa Hotel, parking in a side street onto which one side of the hotel faced. 8 The plaintiff and the defendant remained in town, though not continuously in one another's company, until shortly after the closing time of the hotel, about 12 midnight. They left together in the Holden Rodeo utility. The precise circumstances in which they left the hotel are a matter of considerable controversy, and will be explored below. 9 About five kilometres out of town the vehicle ran off the road. Initially it ran onto the grass verge and struck a white guide post. It rolled, at least once, and slewed across to the opposite side of the road and came into collision with a dirt bank. (The precise sequence of these events is unclear.) It came to rest facing west, the opposite to the direction in which it had originally been travelling. The plaintiff lost consciousness for a time although for how long a time is not known. 10 Somehow, and at some time, the defendant extricated herself from the vehicle and walked into Boorowa. At about 3.00 a.m. she awoke a friend, Jacqueline Graetz who was staying with her mother in Boorowa, by knocking on the window. Ms Graetz arranged for an ambulance officer to attend. The defendant was taken to Boorowa Hospital. 11 At about 3.45 a.m. Mr William Eustace, a Boorowa baker, was travelling from his home at Rye Park to Boorowa township. He was driving from east to west. He saw the Holden Rodeo in a seriously damaged condition. The engine was not running, but the motor was still warm. The plaintiff was in the vehicle. He was seated on the driver's side, reclining towards the left of the steering wheel. The defendant was not present. Mr Eustace drove to the local ambulance station, but could not make contact with anybody. He called the emergency number and arranged for police and fire brigade to attend the scene. 12 Boorowa ambulance officers Newling and Gerstenberg attended the scene, arriving at about 4.02 a.m. They also saw the plaintiff seated in the driver's seat and lying towards the passenger seat. 13 The plaintiff was also taken to Boorowa Hospital, and subsequently to the Woden Valley Hospital. On 20 August, at the Woden Valley Hospital, he was interviewed by Senior Constable Sloane. When required to give the name and address of the driver of the Rodeo at the time of the accident, he identified the defendant. 14 On 8 September the plaintiff was again interviewed, this time by Senior Constable Shiels. Again he stated that the defendant had been driving the Rodeo at the time of the collision. He said that he had been sitting in the passenger seat, but that he had no recollection of the accident. He said that his first recollection after the collision was of coming to in the passenger seat, moving to the driver's seat and attempting to move the vehicle, but being unable to do so. The defendant was not present. 15 The defendant was subsequently charged, although the nature of the charge or charges did not emerge in the evidence. However, the plaintiff gave evidence in the prosecution case in the Local Court. That occurred on 26 July 1994. He gave an account of the events of 13 August. This account included the assertion that he had been seated in the passenger seat. 16 Sergeant Peter Bickford attended the scene of the accident and assisted in freeing the plaintiff. He then learned that a female "passenger" had left the scene and was walking into town. He attended Boorowa Hospital where he saw the defendant, in the company of her father. She had obvious injuries. She appeared to be dazed but conscious. Sergeant Bickford asked the defendant if she had been the driver of the vehicle at the time of the collision. She replied that she had not, and that she had crawled out through the windscreen and come into town. After a couple of further questions, the defendant's father intervened to prevent the continuation of the questioning. 17 On 20 August Sergeant Shiels took a statement from the defendant, while she was a patient in the Woden Valley Hospital where she had been transferred. When asked if she had been the driver of the vehicle, she said she could not remember. Nor could she remember anything about the collision itself. 18 On 8 September the defendant was interviewed again by Sergeant Shiels. She was again unable to say who had been the driver of the vehicle. When asked where she had been sitting, she said: "It feels like I'm sitting in the passenger seat but I can't honestly say." * * * 19 The evidence I have outline above was undisputed, although the statements attributed to one or other of the parties cannot be taken as undisputed evidence of the truth of the contents. The preponderance of that evidence points to the defendant as the driver of the vehicle, and the plaintiff as the passenger. However, the defendant now denies that she was the driver, and asserts positively that the plaintiff was driving the Rodeo. This gave rise to considerable dispute, with each party adducing evidence intended to establish the proposition for which he/she contends. Evidence to establish which of the parties was the driver of the car falls into three categories: