District Court New South Wales Medium Neutral Citation: Coward v Stephenson & IAG Limited t/as NRMA Insurance [2018] NSWDC 132 Hearing dates: 1, 2, 3 and 17 May 2018 (Close of submissions : 18 May 2018) Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict and judgment for the defendants on the issue of liability; 2. The plaintiff is to pay the defendants' costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: TORTS – negligence – motor vehicle accident – determination of separate question – findings as to who was the driver of the vehicle at the time of the accident – whether driver was negligent Legislation Cited: Civil Liability Act 2002, Motor Accidents Compensation Act 1999, s 119 Cases Cited: Mason v Demasi [2009] NSWCA 227 Category: Principal judgment Parties: Graham John Coward (Plaintiff) Gail Anne Stephenson (First defendant) IAG Limited t/as NRMA Insurance (Second defendant) Representation: Counsel: Mr M Rollinson with Mr T Yeh (Plaintiff) Mr D Farrell, Solicitor (First defendant) Mr K Rewell SC (Second defendant) Mr D Crowe, Solicitor (Second defendant on 17 May 2018) Solicitors: Tran Solicitors (Plaintiff) Goldrick Farrell Mulan (First defendant) Hall & Wilcox (Second defendant) File Number(s): 2016/302625 Publication restriction: None Judgment Table of Contents Nature of case [1] Factual background [2] – [6] Issues [7] Evidence overview [8] – [9] Credit submissions [10] – [20] Analysis of evidence [21] – [77] Was the plaintiff a passenger or the driver [78] – [86] Disposition [87] Costs [88] – [89] Orders [90] Nature of case 1. This is a claim by the plaintiff, Mr Graham Coward, seeking damages in respect of personal injuries he sustained in a motor vehicle accident. These reasons deal only with determining the separate question of who was the driver of the vehicle at the time of the accident. It is common ground between the parties, that at the time of the accident, the driver, whoever it was, had driven negligently. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ("MAC Act") and the Civil Liability Act 2002 ("CL Act"). Factual background 1. At about 2.30am on the morning of Saturday 12 October 2013, the plaintiff was injured in a motor vehicle accident that occurred on a westerly section of Burley Griffin Way at Binalong, NSW. The accident occurred in darkness when the vehicle slid off the roadway and to the right whilst negotiating a left curve in the roadway, rolled over, and ended up in a ditch, resting at an angle, partly on the driver's side, and partly on the roof. 2. The plaintiff claims that at that time, the vehicle was being driven by the first defendant, Ms Gail Stephenson, his de facto partner. The plaintiff claims he was a passenger in the vehicle at the time. Consistent with that position, Ms Stephenson has stated that she was the driver of the vehicle. Consequently, it appears that this is the reason why she has not filed a defence to the plaintiff's claim. 3. On 17 March 2017, following an interlocutory order made by a Judge of this Court, pursuant to s 119 of the MAC Act, the second defendant, Insurance Australia Group Limited trading as NRMA Insurance, was joined to the proceedings as the compulsory third party insurer of the vehicle. 4. The insurer does not accept that Ms Stephenson was driving the vehicle at the relevant time. The legal representatives of the insurer do not represent Ms Stephenson in these proceedings. 5. In the insurer's filed defence to the plaintiff's amended statement of claim, it has denied that Ms Stephenson was the driver at the relevant time. Instead, the insurer asserts that the plaintiff was the driver at that time. Issues 1. The only issue to be determined in this part of the proceedings is the factual question of who was the driver and who was the passenger in the vehicle at the time of the subject accident. Evidence overview 1. In addition to the plaintiff's evidence in his case, oral evidence was called from Ms Diane Nolan, who took some post-accident photographs of the plaintiff's vehicle in its damaged condition at the accident scene. The plaintiff also called the first defendant, Ms Stephenson, as a witness in his case. The balance of the evidence in the plaintiff's case comprised photographic evidence and documents. 2. Ms Stephenson did not tender any documentary evidence in her case. The insurer called Leading Senior Constable Monkley, the investigating police officer. The defendant also called Ms Joanne Fenney, the ambulance paramedic who attended upon the plaintiff at the scene, Ms Annette Henry, the ambulance paramedic who attended upon Ms Stephenson at the scene, and Mr Steven Palmer, who lived at a neighbouring property to the accident scene, and who had responded to Ms Stephenson's call for help. When Mr Palmer attended the scene at the request of Ms Stephenson, in darkness, he had assisted the plaintiff out of the vehicle. The insurer also tendered a folder of documents that are relevant to the liability issues: Exhibit "1". Credit submissions 1. The insurer made credit challenges to the evidence of the plaintiff and Ms Stephenson. Shortly stated, the insurer argued that the evidence of the plaintiff and Ms Stephenson on the central question of who was the driver, should not be accepted. 2. That submission made on behalf of the insurer was based on a series of propositions. These included the content of a number of prior contrary contemporaneous statements attributed to both the plaintiff and to Ms Stephenson, which were not disputed, and the argued unreliability of their subsequent reconstructed memories of the accident circumstances, as was related in their evidence. 3. The insurer also submitted that the plaintiff and Ms Stephenson had in their evidence in these proceedings, both given a false account as to who was driving at the time of the accident. It was submitted they did so on the basis of unreliable memories that were reconstructed in order to assist the plaintiff with regard to his claim for damages. 4. After careful consideration, I do not accept the insurer's submission that the plaintiff and Ms Stephenson gave deliberately false accounts in order to assist the plaintiff's claim for damages. I consider that they gave their respective evidence sincerely, and in the belief that their evidence represented a true account of the events. However, as those accounts were founded upon an analysis that appeared to have been based upon a reconstructed belief, as such, they must be evaluated for reliability. 5. That evaluation must be undertaken against the common ground position that the various initial histories and accounts respectively given by the plaintiff and by Ms Stephenson were to the effect that the plaintiff had been the driver of the vehicle at the time of the accident. 6. The plaintiff said that following his respective transfers from Yass and Canberra Hospitals, where he had stated he was the driver of the vehicle, and 5 days after the accident, and following his transfer to being an in-patient at Liverpool Hospital, he had experienced what I shall describe as a number of recurring phenomena, which he said had led him to the view that at the time of the accident, he had been the passenger in the vehicle, and not the driver, as he had beforehand stated to those who had an interest in exploring that issue. 7. The plaintiff's evidence to that effect initially described those phenomena as nightmares, but not dreams, and then later, these were described as dreams. This was also referred to in submissions as flashbacks, which had led the plaintiff to reconsider the events. He also said that it did not come to him "as a nightmare, it's just repeated over and over in my head": T51.39 – T51.49. 8. The question which therefore arises, is whether that evidence was based on a reliable and actual conscious recollection, rather than being based upon a reconstructed belief as to what occurred in the events. 9. Following the evolution of the process of the plaintiff's changed account of events as described above, he came to the view that he had been the passenger in the vehicle at the time of the accident, and that he was not the driver, as he had previously indicated when he was variously asked about that matter by ambulance, medical, paramedical and police personnel. 10. Ms Stephenson's various accounts of the events included, initially, having no recall of the accident, then having recalled being a passenger in the vehicle, and then changing that version to being the driver at the time of the accident. 11. Therefore, the central question is whether the respective evidentiary accounts of the plaintiff and Ms Stephenson as to who at the time of the accident had been the driver, provide a reliable basis for the findings that they each seek on that issue in this case. Analysis of evidence 1. It is convenient to commence the analysis of the issue of who was the driver of the vehicle by first examining the relevant content of a range of contemporaneous documents. 2. An analytical approach along those lines generally requires that caution be exercised in drawing conclusions from such documents because of considerations such as the differing purposes for which those documents were created, where, here, apart from the police records, the purpose was principally for documenting medical assessment and treatment, rather than as part of a liability investigation: Mason v Demasi [2009] NSWCA 227, at [2]. 3. The insurer submitted that, notwithstanding the cited passage in Mason v Demasi, the present case is distinguishable from the facts that underpinned that decision because the plaintiff's initial and contemporaneous version of having been the driver, came from him, and not just from summarised versions prepared by other persons: T193.2 – T193.21. The insurer's submission, if accepted on that point, requires that some considerable significance be attached to the admissions made by the plaintiff as to him having been the driver, particularly as had been indicated by him to Senior Constable Monkley, in the investigation that followed the accident. 4. It is common ground that not only were the contemporaneously documents created shortly after the accident, but it is also common ground that the respective versions as to who had been driving, as set out in those documents, accurately reflected what the plaintiff and Ms Stephenson had said in their accounts of the events when asked questions by ambulance, medical, paramedical and police personnel. 5. That evidence, and its context, has satisfied me that the ambulance paramedics who attended the plaintiff and Ms Stephenson at the accident scene had a legitimate and good reason to, at the time, enquire, and to document, as to whether the plaintiff was the driver when assessing the nature and the extent of his injuries: T167.5 – T167.6; Mason v Demasi [2009] NSWCA 227, at [2]. Those circumstances provide some considerable force for the insurer's submission cited at paragraph [23] above. 6. The insurer submitted that those cited documents reliably point to the fact that it was the plaintiff and not Ms Stephenson who was the driver of the vehicle at the relevant time. That submission requires evaluation in light of the following matters arising from the evidence. 7. Mr Palmer, who lived near to where the accident happened, was the first independent person who had attended the accident scene in order to render assistance. He said he was not in a position to form a view as to who had been the driver of the vehicle at the time of the collision, or immediately afterwards. Mr Palmer said that he did not make any observations in that regard because of the prevailing circumstances of darkness, and because of the confusion of events that occurred in the course of assisting the plaintiff out of the vehicle, particularly as to who had been seated, and where, inside the vehicle. 8. The nature of the plaintiff's injuries, as recorded and described in the contemporaneous ambulance and medical records, does not provide a reliable indication as to which position he had occupied in the vehicle at the time of the accident. For example, there was no record in the ambulance or hospital treatment records to suggest that the plaintiff had suffered seatbelt bruising, or any related injuries, in a pattern or in a distribution that could be said to have been consistent with being either the driver or the passenger at the time of the collision. 9. In chronological sequence, the relevant contemporaneous documents which suggest that the plaintiff was the driver of the vehicle, and that Ms Stephenson was the passenger, are reviewed in the paragraphs that now follow. 10. Ms Joanne Fenney, the ambulance paramedic who first attended upon the plaintiff at the scene of the accident, at 03:05 hours, took a version from the plaintiff in which the plaintiff had stated that he was the driver of the vehicle at the time, and that in the events, it was noted that he had stated he had misjudged the corner at the accident site, and as a result, he had rolled the vehicle twice before landing on the roof: Exhibit "1", p 37. 11. Ms Annette Henry, the ambulance paramedic who first attended upon Ms Stephenson at the scene of the accident shortly after 03:16 hours, took a history from Ms Stephenson in which it was recorded that she stated she had been a passenger when the vehicle had rolled over: Exhibit "1", p 42. 12. When the triage nurse at Yass Hospital saw the plaintiff at 04:15 hours on the morning of the accident, she recorded the history from the plaintiff that he had been the driver of a single vehicle collision when the vehicle rolled over: Exhibit "1", p 101. 13. At around the same time, namely at about 04:18 hours on 12 October 2013, Ms Stephenson's account, as recorded by Dr Farrer at the emergency department of Yass Hospital, was noted as: "Can't remember accident": Exhibit "1", p 270. This is a significant detail of history that requires evaluation in light of Ms Stephenson's subsequent evidence, and the evidence related to her pre-accident consumption of alcohol. 14. Dr Farrer later wrote a discharge letter to Canberra Hospital, transferring the plaintiff's care to that hospital. In that letter it was recorded that the plaintiff had been the driver of the vehicle when he lost control whilst travelling at 80kph: Exhibit "1", p 100. It was clear from the evidence that this particular version of the events had been obtained directly from the plaintiff. 15. Dr Stephens, the resident medical officer who attended to the plaintiff in the emergency department at Canberra Hospital, took a history from the plaintiff that he had been the driver at the time of the accident, and that he had lost concentration, and that in those circumstances, the car had then rolled one and-a-half times, before landing on the roof, and that the plaintiff had then self-extricated himself from the vehicle: Exhibit "1", p 111. 16. A physiotherapist who saw the plaintiff at Canberra Hospital at 13:55 hours on 12 October 2013, took a history from the plaintiff that he had been the driver of the vehicle at the time of the accident, and that the car had rolled one and-a-half times, and that he had remembered the crash, which was a "high speed" 80kph accident: Exhibit "1", p 117. 17. The Canberra Hospital discharge summary recorded the plaintiff's presenting history as having been the driver in a, 80kph motor vehicle collision, here he had reported having lost concentration, following which the vehicle rolled one and-a-half times, landing on the roof: Exhibit "1", p 91. 18. Dr Rampe, a resident medical officer in the Emergency Department prepared the discharge letter from Canberra Hospital, transferring the plaintiff's case to Liverpool Hospital. That letter nominated the plaintiff as the source of information where the plaintiff had attributed the accident to his own inattention and exhaustion: Exhibit "1", p 124. The compelling inference from that context was that the plaintiff had been driving the vehicle at the time of the accident. 19. Senior Constable Monkley, the investigating police officer at Binalong, obtained a statement from the plaintiff whilst he was still at Yass Hospital. In that statement, the plaintiff said he was the driver of the vehicle when he took a corner too wide, crossed over onto the incorrect side of the roadway, and onto the offside shoulder, following which the vehicle went into a table drain and had overturned: Exhibit "4". 20. Senior Constable Monkley spoke to the plaintiff and to Ms Stephenson after the accident, and had ascertained from them that the plaintiff was the driver of the vehicle, and that Ms Stephenson was the passenger at the time of the accident: Exhibit "2". 21. At about 6.30am on 12 October 2013, almost 3 hours after the accident, a member of the nursing staff at Yass Hospital, M Dwyer, made a triage note in relation to Ms Stephenson as follows: "Large vomit Smells strongly of alcohol": Exhibit "1", p 269. That note was consistent with the content of Dr Farrer's letter that accompanied the transfer of Ms Stephenson from Yass Hospital to Canberra Hospital at 8.45am on 12 October 2013, wherein it was stated that Ms Stephenson was "mildly intoxicated": Exhibit "1", p 262. 22. The reference to "Large vomit Smells strongly of alcohol" was not the subject of cross-examination or submissions at the hearing. In the course of analysis of the evidence, when that item of detail was recognised as having some relevance to the outcome, the matter was relisted on 17 May 2018, at which time the attention of the parties was drawn to the item cited, and submissions were invited on that matter. Those submissions, in writing, were received from the insurer on 17 May 2018 (MFI "4"), and from the plaintiff on 18 May 2018: MFI "5". 23. On behalf of the insurer, it was submitted that the note in question was consistent with Dr Farrer's observation of Ms Stephenson being still "mildly intoxicated" at 8.45am on 12 October 2013, and provides a basis for casting significant doubt upon Ms Stephenson's evidence that she had not consumed alcohol at the latest, after 1.00pm the previous day: T106.6 – T107.27. 24. In contrast, on behalf of the plaintiff, it was argued, syntactically, that since there was no full stop in the note between "Large vomit" and "Smells strongly of alcohol", the note was ambiguous, and probably refers to the large amount of vomitus smelling of alcohol. It was further suggested that interpretation, consistent with Dr Farrer's subsequent notation of "mildly intoxicated", could just be the lingering effects of drinks taken early in the previous afternoon, but not of being so affected as to be unable to drive. No submissions on this aspect were made on behalf of Ms Stephenson. 25. I do not accept the submission to the effect that the triage nursing note can be more benignly explained by the interpretation that the note should be seen as having a missing punctuation comprising a full stop between the words "Large vomit" and "Smells strongly of alcohol". The purpose of the note was to briefly record the impression or observation made of Ms Stephenson by a triage nurse, and was not expected to include the syntactical considerations now sought to be imputed on behalf of the plaintiff: Mason v Demasi [2009] NSWCA 227, at [2]. 26. In light of the undisputedly contemporaneous recorded statements attributed to both the plaintiff and to Ms Stephenson, which indicated that they were the driver and the passenger respectively, any argued reversal of those recorded factual scenarios must be viewed with some considerable care and circumspection. This is because considerable weight must be given to those contemporaneous statements. 27. I now turn to the evidence relied upon by the plaintiff and by Ms Stephenson in support of that contrary view, namely that she was the driver of the vehicle at the time of the accident. 28. The contrary suggestion from the plaintiff to the effect that he had been a passenger in the vehicle only arose some days after the accident when he was an in-patient in Liverpool Hospital, following his discharge from Canberra Hospital. In his evidence in chief, the plaintiff initially described that process as follows: "Q. You've seen that you were transferred to Liverpool Hospital and you spent some weeks in Liverpool Hospital including surgery, at Liverpool Hospital did you think about who was driving? A. Not straight away. Probably on the Monday, I got to Liverpool Hospital on the Friday, it was about Monday I started getting, started having nightmares of the accident, waking up at the accident, sliding and rolling the car. Q. Nightmares of waking up, sliding and rolling the car? A. Yeah. Q. In these nightmares, what seat in the car are you sitting in? A. I'm sitting in the passenger seat." [T15.36 – T15.47] 1. The plaintiff was asked about when that changed realisation which he described in the above extract of his evidence had occurred. He was also asked about a conversation he had with Ms Stephenson whilst he was still an in-patient at Liverpool Hospital. His evidence in that regard was as follows: "Q. After you transferred to Liverpool, do you remember Gail visiting you there? A. I think she come in on the Monday. Q. The Monday after the Friday that you arrived? A. After the Friday, yeah. Q. Do you remember the conversation you had that day if you had any? A. I don't think we had one that day because I think she was just coming in to check to see if I was all right. Q. Bur did you have conversations with her in Liverpool Hospital while you were staying there? A. Yes. Q. Did you talk about the accident, how it happened? A. I think we did and I said, "Just forget about it. I just want to get back, get my life back on, go back to work, I just want to get fixed up and go back to work". Q. Did you talk to Gail about how the accident happened? A. I asked her what happened and she said she hit gravel and hit a ditch and rolled the car. Q. Is this after you'd been having these nightmares or before, do you remember? A. This would have been after the nightmares, after or maybe --" [T16.15 – T16.40] 1. The plaintiff later elaborated upon that obvious change in his viewpoint as to who had been driving. In doing so, he vacillated from the description of "nightmare" to a description of something that had repeated over and over in his head. I interpret that evidence as being a description of his recurring thought process at that time. His evidence in that regard was as follows: "Q. Nevertheless, when you got to Liverpool Hospital you told them you were the driver because, quote, you thought you were the driver? A. Yeah, and I was not the driver. Q. You thought you were the driver as at the date of your admission to Liverpool Hospital four or five days after the accident, didn't you? A. Yes. Q. At that time you knew perfectly well what you felt and what you'd seen and what you'd done at the accident scene? A. No. I don't recollect anything of that at the accident scene. Q. Do you say that five days after the accident when you arrived at Liverpool Hospital you had no recollection of finding yourself hanging from the seat belt in the passenger seat? A. On the Monday after I got the ..(not transcribable) to Liverpool I recollected. Q. Did this idea, this evidence that you've given about hanging from the seat in the passenger seat, did this only come to you in a dream at Liverpool Hospital? A. No, it did not come to me in a it did not come to me in a dream. Q. A nightmare? A. It was a yeah, a nightmare, but it wasn't a dream. Q. It came to you, did it, in a nightmare at Liverpool Hospital? A. It didn't come to me as a nightmare, it's just repeated over and over in my head." [T51.22 – T51.49] [Transcript correction at T51.37 incorporated] [Emphasis added] 1. In my view, the evidence emphasised in the above cited extract rises no higher than a recurrent thought process, as distinct from an actual recollection by the plaintiff of him being the passenger at the time of the accident. 2. In answers to questions asked of him in cross-examination, the plaintiff went on to explain that he had told the doctor who had attended to him in the emergency department at Canberra Hospital that he was the driver of the vehicle, because, at that time, he thought that he had been the driver: T52.39 – T52.41. The implication of that evidence is that he was seeking to make a distinction between a thought process and an actual recollection. 3. In that evidence, the plaintiff clearly intended to convey the meaning that he had not given his answers to questions asked of him by ambulance, medical, paramedical and police personnel as to him having been the driver, from an actual memory, but from a belief he had concerning that factual matter. 4. The plaintiff explained that whilst he was an in-patient at Liverpool Hospital, and whilst in his sleep, he had seen, in a dream or in the course of a nightmare, that he had been sitting in the passenger seat and the vehicle started sliding and hit the embankment, and that the dream or nightmare then ceased after the car had stopped rolling in that dream, and at that time he said that he saw himself seated, or hanging upside down in the passenger's seat being restrained by a seatbelt: T53.22 – T53.24; T53.47 – T53.49. 5. The plaintiff's account of the events as being either a dream or a nightmare, or a repeated thought in his head, seems to me to have been a thought process involving reconstruction rather than an actual memory. 6. The plaintiff said that by the time he had left Liverpool Hospital, he was convinced from his experience of such dreams or nightmares that he had been the passenger and not the driver at the time of the accident: T55.22 – T55.31. He said that on about three to four occasions he had dreams along those lines which had led him to the view that he was the passenger at the time of the accident: T55.33 – T55.47. He therefore adamantly maintained he had been the passenger and not the driver of the vehicle: T56.43; T57.2; T59.21 – T59.38. 7. When Ms Stephenson was initially interviewed, she said that she had thought that she had been the passenger in the vehicle: T121.48 – T122.13; T123.13 – T123.14; Ms Stephenson's changed account in her description as to who was the driver evolved as follows. 8. First, the plaintiff stated that whilst he was an in-patient at Liverpool Hospital, Ms Stephenson had told him she had been driving, and had "hit gravel and hit a ditch and rolled the car": T16.35. Ms Stephenson confirmed that she had that conversation with the plaintiff, at which time she said "I remember driving now": T91.42 – T92.5. That evidence was very different to her undisputed contemporaneous account to the effect that she could not remember who had been driving, as cited at paragraph [31] above: Exhibit "1", p 270. 9. Secondly, Ms Stephenson explained the delay in the emergence of her recollection of being the driver by saying that after the accident, she had been in shock for a while, and then started thinking about the accident, and on the fifth day post-accident, she started "remembering everything": T92.11. There was no medical opinion evidence tendered to explain or support that emergent scenario. 10. Thirdly, she said that she could not recall the earlier instances where, when asked about the accident she had said that she had been driving: T92.50 – T93.25. 11. In explaining her current view as to who had been driving at the time of the accident, Ms Stephenson said she came to her recollection of being the driver five days after the accident, when she was driven to the accident scene, at which time she saw the street signs in the vicinity, referring to the speed signs on the side of the roadway: T116.38; T122.49. 12. Ms Stephenson maintained throughout her evidence in these proceedings, and in earlier proceedings in the Local Court at Yass, where the plaintiff was acquitted of the charge of negligent driving, that she was the driver of the vehicle at the time of the accident: T96.44 – T98.8; T113.45; T115.8. 13. Ms Stephenson denied that she had invented her account of a recollection arising five days after the accident of having been the driver, as a story to try to overcome the effect of the contents of the contemporaneous records which indicated that she had been the passenger in the vehicle at the time of the accident: T111.16 – T111.19. In proffering support for that view, she said she recalled holding onto the steering wheel: T124.45. It was not clear from the evidence as to whether she was relating that recollection to the time of the accident. 14. Ms Stephenson also denied that she had given a false account of being the driver at the time of the accident in order to assist the plaintiff's claim for substantial damages: T131.28 – T132.5. 15. Ms Stephenson said that she spoke to the plaintiff about the accident when she visited him at Liverpool Hospital, where she had brought up the subject and had told him: "I remember driving now": T91.42 – T92.5. Her account in that regard was explored in chief as follows: "Q. What did you say, do you remember? A. I said, I was driving, "I remember driving now". Q. "I remember driving now", that memory that you were driving, when did that first come to you? A. I started getting little, like I was in shock for a while, then I started thinking about it a couple of days after the accident and then when I went down on the fifth day I just started remembering everything on the fifth day. Q. On the 15th? A. When I went back on the same road." [T92.4 – T92.14] 1. Ms Stephenson sought to explain that change in her position from her earlier more contemporaneous accounts, five days after the plaintiff's accident, or shortly afterwards, when she got into a motor vehicle to travel to the accident scene to get rid of the vehicle involved in the accident (T92.7 – T92.14), at which time she said that she came to realise that she had been driving at the time of the accident: T103.9 – T103.25. 2. The credibility of Ms Stephenson's evidence as summarised above must be assessed according to the earlier cited evidence that related to Ms Stephenson's consumption of alcohol in the lead-up to the accident, and whilst also having regard to the post-accident medical observations of her in that regard, including that, about 4 hours post-accident, at 06:30 hours, on 12 October 2013, he was observed to have had a "Large vomit" and it was considered that she "Smells strongly of alcohol": Exhibit "1", p 269. Those circumstances require an examination of the chronology of some relevant background events, as now follows. 3. The plaintiff and Ms Stephenson had commenced their intended journey to Temora from Warwick Farm in Sydney at about 11.30pm: T11.5. This was in circumstances where the plaintiff was tired after having worked a 14 hour shift as a truck driver: T27.32. At that time the plaintiff said he had driven the vehicle from Warwick Farm, for about 20 minutes, at which time he made a refuelling stop at Casula. It was claimed that Ms Stephenson then took over the driving after that fuel stop. He said he recalled Ms Stephenson was driving the vehicle from Casula: T25.22 – T25.42; T57.35. 4. The plaintiff said that before setting off and driving from Warwick Farm, he had consumed two mixed drinks of Bourbon and was fine to drive from the perspective of alcohol consumption: T57.26. He also said that as a truck driver, whilst he could have driven the entire journey from Warwick Farm to the intended destination of Temora, a 5 hour drive, he had not done so: T57.28 – T57.35. 5. The plaintiff said that at Casula, when he had stopped for fuel, he also bought some caffeine or energy drinks for himself, and a bottle of water for Ms Stephenson. He said that at that time, she had taken up the position of sitting in the driver's seat. He said he bought those drinks to keep himself awake, not in order to be able to drive, but in order to stay awake so he could show Ms Stephenson the way, and where to turn. However, he said that in those events, he fell asleep: T57.24 – T58.32. 6. A significant matter to be reconciled with that account was the evidence of Ms Stephenson's pre-accident alcohol consumption and the medical observations made by the triage nurse, M Dwyer, of Ms Stephenson having been observed to have had a "Large vomit" and "Smells strongly of alcohol" at 6.30am on 12 October 2013, and the observation by Dr Farrer, at Yass Hospital that before transfer, when Ms Stephenson was noted as being "mildly intoxicated" after consuming 6 drinks and taking 2 Serepax tablets since 1.00pm the previous day: Exhibit "1", p 262; p 269. 7. Ms Stephenson denied she had been intoxicated to the degree that she should not drive: T129.13. Similarly, the plaintiff denied Ms Stephenson showed any sign of intoxication at the beginning of the journey and did not appear to have consumed alcoholic drinks: T23.20; T23.44; T24.08. However, I consider that evidence should be considerably discounted on account of the unchallenged history in the contemporaneously recorded evidence in the medical records, in which it was variously noted that she "Smells strongly of alcohol" and that she was observed to have been "mildly intoxicated" at about 6 hours post-accident. 8. In that latter regard, Ms Stephenson said that she had earlier consumed about 5 or 6 twist top 375ml bottles of full strength beer (T104.29 – T104.41), having started drinking that beer at around 10.00am on 11 October 2013, and having finished drinking at about 1.00pm on that day: T106.12 – T106.27. In light of the unchallenged content of the hospital notes which suggested Ms Stephenson was drinking after 1.00pm, I consider Ms Stephenson's account of those events should be discounted and not accepted. If Ms Stephenson had truly finished her consumption of 6 twist top bottles of full strength beer by 1.00pm at the latest, on 11 October 2013 (T104.34), it would have been unlikely that 6 hours later, there would have been evident signs of her being still affected by alcohol at the time when nursing and medical assessments were made of her condition: Exhibit "1", p 269; p 262. 9. In that regard, Dr Farrer had recorded (at Exhibit "1", p 262), that Ms Stephenson had told her she had consumed 6 drinks since 1.00pm on 11 October 2013, and in that time she had also taken 2 Serepax tablets. Ms Stephenson said she had not consumed any further alcoholic drinks along the journey, it seems that her described consumption of alcohol before the commencement of the journey was the basis for Dr Farrer's observation that Ms Stephenson was "mildly intoxicated". No scientific expert evidence was called to seek to explain the consequences and likely level of alcohol consumption required for such an observation to be made, either with or without the combined effects of Ms Stephenson having taken 2 Serepax tablets. 10. When in cross-examination it was suggested to Ms Stephenson that she had given her version of events to Dr Farrer concerning her prior alcohol consumption, she said she could not recall having done so: T116.22. In light of that evidence, in reviewing the evidence as a whole, I consider that Ms Stephenson has understated her pre-accident alcohol consumption. Consequently, I also consider that those events have adversely impacted upon the reliability of her testimony. I consider that view to be supported by the observations recorded at Yass Hospital to the effect that at 6.30am on 12 October 2013, when it was noted that Ms Stephenson had vomited a large amount, and had strongly smelt of alcohol: Exhibit "1", p 269. 11. In coming to that view, I have not overlooked the evidence that Ms Henry, the ambulance paramedic who had attended to Ms Stephenson and transported her to Yass Hospital, had administered an anti-emetic drug to Ms Stephenson: T189.5 – T189.28. There was no evidence of the likely duration of time for the effectiveness of that drug to prevent nausea or vomiting from occurring. 12. In my view, in those circumstances, on the balance of probabilities, I consider that Dr Farrer's recorded history was more likely to be factually correct. I consider that it was highly improbable that Ms Stephenson's account of her consumption of alcoholic drinks, if correct, and of the order of 6 drinks of full strength beer from some time after 1.00pm on 11 October 2013, and before setting off at 11.30pm that evening, would have enabled her to drive from Casula to Binalong, without incident. Was the plaintiff a passenger or the driver? 1. I have concluded that the evidence reviewed from paragraph [21] above, compels me to the view that, on the balance of probabilities, the plaintiff was the driver of the vehicle at the time of the accident. 2. In that regard, I consider the most probable explanation of events to be that: Ms Stephenson was too intoxicated to drive the vehicle; the plaintiff was not intoxicated; the plaintiff would not have let her drive in an intoxicated state (T23.23 – T23.25); the plaintiff drove, but was tired after working a 14 hour shift, and despite his consumption of energy or caffeine drinks, he drove whilst tired at the time of the accident, and therefore, as he had stated to, and as was recorded by hospital staff, he lost concentration when at the accident scene and caused the vehicle to roll over. 3. The contrary view maintained by the plaintiff, namely to the effect he was a passenger at the time of the accident, came from the content of a recurrent dream or similar manifestation that occurred some days after the accident, and which had recurred to him over a period of several days. 4. Absent expert evidence as to the reliability of what appears to be a subconscious neuropsychological process being an acceptable basis for a recalled account of events, I am compelled to the view that the plaintiff's dreams or nightmares about the accident, as described by him, are an unreliable reconstruction of events. This does not form a reliable basis for displacing his earlier and more contemporaneously expressed statements to the contrary. 5. A factor which suggests unreliability of the plaintiff's view in that regard was that there were variations in his evidence in which his descriptions vacillated from acceptance that his changed evidence was variously, based on a dream, a nightmare, or a recurrent thought, that had led him to his ultimate view on that matter. Those descriptions do not connote a reliable basis for making findings of fact of the kind under present consideration, especially where the finding sought by the plaintiff is contradictory of contemporaneous records that state otherwise. 6. The evidence does not suggest the plaintiff to have had a significant head injury that involved the emergence of a state of amnesia for a period, and which might have later given rise to a delayed but now emergent claim of a recall of events not previously recalled: Exhibit "1", pp 1 – 4. 7. Furthermore, I do not accept Ms Stephenson's evidence that she was the driver of the vehicle at the time of the accident. Her contemporaneous accounts given shortly after the accident suggests otherwise. Her recollection of being the driver as recounted to the plaintiff at Liverpool Hospital is in my view unreliable. Absent explanatory expert evidence concerning the possible temporary effects of a head injury on memory, her emergent account in which she claimed to be the driver, is an insufficient basis upon which to discount the contemporaneous statements in which she said she was the passenger at the time of the accident. 8. I find that the plaintiff's initial and contemporaneously recorded admissions as to being the driver at the time of the accident were true, and were not based on wrong assumptions, as he now asserts. I consider that he gave those statements on the basis of an actual recollection at the time, and which I find he had actually recounted, as described in more detail at paragraphs [30], [32] and [34] to [39] above. 9. In coming to those conclusions I have considered but discounted the evidence describing the positioning of Ms Stephenson's backrest cushion as found in the driver's seat when the vehicle was examined after the accident. I consider that evidence was of neutral significance as I consider that the presence of the backrest cushion in that location would have been an unlikely impediment to the plaintiff's ability to drive the vehicle, especially in the extended seating adjustment position in which he preferred to drive: Exhibit "B", p 1. Disposition 1. The plaintiff has failed to establish his entitlement to a verdict in his favour on the liability issue. Since that is the substantive issue which determines the proceedings, there must therefore be a verdict and a judgment in favour of the defendants. Costs 1. As the insurer has succeeded in obtaining a judgment in its favour, it should have an order that the plaintiff should pay its costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order. 2. The insurer seeks an order for costs on the indemnity basis. In this case, an order of that nature would only arise for consideration if the plaintiff had made a false claim. I have not accepted that submission. Accordingly, the defendants' costs should only be payable on the ordinary basis. Orders 1. I make the following orders: 1. Verdict and judgment for the defendants on the issue of liability; 2. The plaintiff is to pay the defendants' costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days' notice if further or other orders are required. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2018