Robens v Fernandez [2007] NSWSC 1013

New South Wales Supreme Court

CITATION : Robens v Fernandez [2007] NSWSC 1013

HEARING DATE(S) : 27-31 August 2007; 3 September 2007

JUDGMENT DATE : 27 September 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : Findings made in respect of, inter alia, defence of contributory negligence. These findings may assist the parties in reaching agreement as to the apportionment of damages. If a consensus is not so reached, the matter may be re-listed for further argument.

CATCHWORDS : Contributory negligence - alcohol - manner of driving - seatbelts - expert evidence - sale or supply of liquor - hearsay rule - relief from failure to give notice

Evidence Act 1995 (NSW) LEGISLATION CITED : Liquor Act 1982 (NSW) Motor Accidents Compensation Act 1999 (NSW) Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW)

CASES CITED : Joslyn v Berryman (2003) 214 CLR 552

Sheree Robens by her next friend Jennie Robens (Pl) PARTIES : Jose Humberto Fernandez (Def)

FILE NUMBER(S) : SC 20010/05

COUNSEL : Mr G. B. Hall QC / Mr M. Daley (Pl) Mr R. R . Bartlett SC / Mr R. H. Weinstein (Def)

SOLICITORS : Brydens Law Office (Pl) Dibbs Abbott Stillman (Def)

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

27 SEPTEMBER 2007

20010/05 Sheree Robens by her next friend Jennie Robens v Jose Humberto Fernandez

JUDGMENT 1 HIS HONOUR: The plaintiff was born on 27 February 1985 (she is now 22 years of age). Her parents separated and they were divorced in January 1991. She attended school until the end of Year 10 (Macquarie Fields High School). 2 In 2000, she met William Osorio (Osorio) and they formed a relationship. In 2001, she commenced an apprenticeship in hairdressing at Liverpool TAFE. She was employed as an apprentice hairdresser at "Extreme Hair and Beauty" at Macquarie Fields. On 31 August 2001, a child (Jaiden) was born of the relationship with Osorio. Prior to that birth, she left her apprenticeship and her employment. She moved to Canberra to live. 3 At about 2.25am on 11 November 2001, the plaintiff was involved in a motor vehicle accident and suffered serious injury (she was then 16 years of age). At the time of the accident, the vehicle was travelling south along Woodville Road towards Villawood (approaching the intersection with Llewellyn Avenue). The speed limit was 70 kilometres per hour. Immediately prior to the accident, the plaintiff and Sascha Dutton (Dutton) were back-seat passengers (the plaintiff was seated on the passenger's side). The defendant was the driver (he was then 23 years of age) and Osorio was a passenger in the front seat. Music was being played on the "CD player". The defendant said that it was "pretty loud". The vehicle was a gold Commodore, owned by the defendant. He described it as being "almost brand new" and "in excellent condition". As a result of the accident it was treated as a "write-off". It was fitted with lap sash seatbelts, which were in good working order. 4 The defendant and Osorio were cousins and friends. According to Osorio, the former had known the plaintiff for about a year prior to the accident (the defendant has said that it was two years). The plaintiff and Dutton were friends. Prior to the accident, the occupants of the vehicle had been at premises where Osorio lived in Macquarie Fields (Osorio's premises) and alcohol had been consumed. Late on 10 November 2001 (a Saturday), the foursome had driven into the City and then to Bondi Beach. At the time of the accident they were on their way home. 5 The defendant and Osorio were able to alight from the vehicle (they suffered minor injuries only) and an altercation ensued between them. Dutton had been thrown from the vehicle. The plaintiff was partially trapped inside it and unconscious. After she was removed from the vehicle by the defendant and Osorio (prior to the arrival of the police or the ambulance) the defendant absconded from the accident scene (he went to his girlfriend's place and later to hospital). 6 Prior to the accident, the defendant had been travelling at a fast speed. The vehicle came to and proceeded to cross a bridge. There were three traffic lanes (one being a right-hand turn lane). The defendant has given two versions of the accident. One version was that he was travelling in "the left-hand side lane". He saw a car in front of him in that lane. He "hit the brakes" and "turned right to overtake that car". He said "that it felt like to me that the car slid out from the back end. This is the last thing I remember. I next remember waking up in a park". The vehicle struck a number of objects (including a traffic control light pole, which it took across an intersection). Finally, it struck a gutter on the far side of the intersection, mounted the footpath, rolled over a fence and landed on its roof in the garden in front of a block of home units (in so doing there may have been contact with the building itself). 7 In the version that I have just mentioned (which is the earliest of the two and is to be found in his statement) the defendant also said that he did not remember what speed he was doing prior to the accident. He added that later his cousin had told him that it felt like 90 or 100 kilometres per hour. He further said that he did not remember the collision at all. What was said in the later record of interview sought to raise the possibility of fault in the steering wheel. A subsequent examination of the vehicle failed to find any mechanical defect or component failure in the vehicle. 8 The defendant pleaded guilty to, and was convicted of, a number of offences (including two offences of dangerous driving causing grievous bodily harm). He was sentenced to a lengthy period of imprisonment and disqualified from driving for a period of three years. 9 The plaintiff has no recollection of the events of, or surrounding, the accident. Her last recollection relates to events occurring well before the accident and her first recollection thereafter relates to events in 2002. 10 It is common ground that neither the plaintiff nor Dutton has any relevant recollection. 11 The plaintiff has been described as suffering catastrophic injuries. She sustained a dramatic brain injury, which has led to gross cognitive impairment. She is not a paraplegic (she can move her legs, but not walk). She is effectively wheelchair bound. 12 The defendant admitted breach of duty of care. It raised issues of contributory negligence. The issues are as follows:- "(a) Travelling in a motor vehicle without wearing a seatbelt in contravention of the road rules; (b) Travelling in a motor vehicle being driven by a person whom the plaintiff knew, or ought reasonably to have known, was intoxicated; (c) Voluntarily assuming the risk of injury by travelling in a motor vehicle being driven at speeds and in a manner both dangerous to the public at large and dangerous to the plaintiff, for a lengthy period of time prior to the subject accident, without requesting the defendant to cease such driving; (d) Failing to take care for her own safety by not asking the defendant to cease driving at speed; (e) Failing to take care for her own safety generally in the circumstances; (f) Consuming alcohol to a point such that the plaintiff was incapable of forming a rational judgment as to whether the defendant was capable of driving a motor vehicle and as such, failing to take care for her own safety in circumstances where the plaintiff knew, or ought to (sic) reasonably to have known, that she was being carried in a vehicle driven by an intoxicated driver at significant speeds." 13 By way of reply, in purported answer to certain of the allegations of contributory negligence, the plaintiff looks to s114 of the Liquor Act 1982 (NSW). It prescribes offences concerning the sale or supply of liquor to a person under the age of 18 years. 14 The hearing commenced on 27 August 2007. On 28 August 2007, the parties reached a consensus as to damages (see Exhibit E). The hearing then continued in respect of the matters raised by the defence and the reply. Submissions on these questions concluded on 3 September 2007. 15 On the questions of contributory negligence, the defendant has called a number of witnesses (Damien Serratore, Jason Nestorovski Norlyper Gosby, Senior Constable Bradley Spaulding, Brett and Alison McGinty, William Osorio and Michael Griffiths). The defendant has also tendered documentation (including a large bundle of photographs, the Police Report and witness statements). The documentation includes the earlier mentioned statement and the record of interview given by the defendant. It was initially marked MFI 1. The plaintiff relied on reports from, and the oral evidence of, Doctors Ellis, Selby-Brown and Sun. 16 On the day preceding the accident, the plaintiff and her child had been at the Osorio premises (visiting for the weekend from Canberra). Osorio went to work. The defendant was present for most of the day. Dutton visited in the afternoon. A consensus emerged to stay the night and have a few drinks. 17 At or about 7.00-8.00pm, a decision was made to purchase alcohol. A purchase (involving bourbon and beer) was made at the local bottle shop. Save for Dutton, all participated in the purchase. There was chatting and socialising. There was a drinking of alcohol until about 10.00 or 11.00pm (the men drank beer and the females (which have been described by Osorio and the defendant as "the girls") drank bourbon and coke). The defendant has said "the girls drank the whole bottle of bourbon between them. They would both of (sic) had the same amount." The defendant decided to go for a drive and the others volunteered to join him. They left for the City after midnight. It was whilst they were at Bondi that the defendant received a call on his mobile phone which brought about the trip home and the driving south along Woodville Road. 18 The parties appear to accept that, whilst the defendant had drunk alcohol during the day preceding the accident, he had probably ceased drinking by about 11.00pm. The amount that he had consumed is the subject of two competing versions (the earliest version was between six and eight stubbies of VB beer, but it was later reduced to an amount between four and five beers in his record of interview). When he was tested (many hours after the accident), a negative reading was produced. He has said that "the girls were aware that I was drinking alcohol." He had not had anything to eat. 19 Alcohol was placed in the vehicle for the purposes of the journey into the City. A bottle of bourbon (Jim Beam) was found and photographed near the damaged vehicle after the accident. After the accident, there was a strong smell of alcohol within the vehicle. Shattered bottles of VB beer were located around the vehicle and freshly leaked beer could be seen pooled around the broken bottles. This may have been a result of the accident. 20 Prior to the accident, the defendant's vehicle was travelling south along Woodville Road. During that time, it was observed by the occupants of three other vehicles. The vehicles have been described as being a green Honda (driven by an off duty policeman, Mr Serratore, and in which Jason Nestorovoski was a passenger), a purple Festiva (in which Norlyper Gosby was a passenger) and a red station-wagon (which was driven by Mr McGinty and in which his now wife was a passenger). The purple Festiva was the vehicle overtaken immediately prior to the accident. All vehicles came upon the scene of the accident, stopped and the occupants attended upon it. 21 The evidence established that prior to the accident the defendant was seen to be driving the vehicle at a fast speed along Woodville Road, that there was a challenge made by Osorio to the driver of the green Honda to a race (at traffic lights located at its intersection with Parramatta Road) and that the defendant swerved his vehicle into the lane in which the green Honda was travelling, forcing it to veer left to avoid a collision and clip the gutter. The defendant's vehicle was seen to take off. It was quickly lost sight of. A speed estimate of 120 kilometres per hour was given. It was also seen to be swerving in between two cars and in between lanes. It was observed as travelling too fast immediately prior to the accident by the passenger in the purple Festiva (this passenger has been described as an Asian lady). It was also seen to disappear and later to be sliding and becoming airborne before it finally ended upside down. 22 Mr McGinty made the observation that, when his vehicle and the defendant's vehicle were at a set of lights, there was a lot of movement in the car, with hands and legs moving about, and climbing from the front seat to the back seat and vice versa. He said that when the lights changed, the defendant's vehicle came across into his lane and pushed the black car in front of him off towards the gutter. At this time, his vehicle was behind the Commodore when the contact was made with the green Honda. He later saw it travelling at high speed (he described it as being like a "bat out of hell"). He also said that the vehicle kept getting red lights, thereby enabling his vehicle to catch up with it, and that when the lights would turn green, it would again accelerate quickly. It fishtailed a couple of times. He said that it was getting away from them twice as fast as they were moving and that this happened on a minimum of four occasions. His vehicle was one of the first vehicles to arrive at the scene of the accident. He observed an Asian lady at the scene. At the time, both girls were out of the car. He gave an estimate of speed as being in excess of 110 kilometres per hour. 23 There was a consensus that a distance of 7.07 kilometres ran between where the incident with the green Honda took place and the scene of the accident.