Consideration of the Evidence on the Issue of Liability
16The plaintiff has no recollection of the motor vehicle impact that injured him, in fact no recollection of several days beforehand. The evidence concerning the circumstances of the impact in the plaintiff's case primarily came from Ms Jaggard, the driver of the car in which the plaintiff was a passenger, as well as the defendant Michelle Scott. Ms Jaggard was an impressive witness who was extremely careful in her description of relevant events. She drove a motor vehicle on this day which belonged to her father. She gave evidence that immediately before the impact the plaintiff was a passenger sitting in the rear driver's seat and Sybil Trebeck was sitting in the front passenger seat. They were driving back to the Australian National University in Canberra and at a point, that I would understand from the video evidence to be less than fifteen kilometres north of Goulburn, because of heavy rain she not only slowed her motor vehicle down to a speed well below that of the speed limit, but ultimately drove onto the side of the road, at least within the breakdown lane itself. This is seen clearly in the photograph and video evidence. She was probably straddling in part the grass verge further to the left of the breakdown lane.
17I accept her evidence that the rain at the time she slowed down was very heavy. In fact it was so heavy and the conditions so bad that she, although an inexperienced driver, felt she could no longer safely drive. I accept her evidence that at the point that she drove over to the side of the road she had seen two vehicles in the minutes beforehand pulled over to the side of the road. Although, the evidence does not establish whether those vehicles were pulled over at the time the defendant came into collision with the vehicle in which the plaintiff was passenger some minutes later. There is no evidence, as I understood it, from the defendant of observing other cars on the side of the road. It is possible that they had moved on before she drove past where they were parked.
18After Ms Jaggard initially pulled over, the wash from a passing heavy vehicle hit her car and, on the suggestion ironically of the plaintiff, she moved further over to the left. That is further away from the breakdown lane. As I have said I have seen a video of this section of road recorded relatively recently and photographs of the area that have been marked by Ms Jaggard in evidence. She marked the photographs with the two positions at which the car was stationary as well as the position she believed the vehicle came to after impact. Of course these markings are only approximates, but there was no suggestion that she was in any major error and there is no doubt that her general description of the location of her vehicle at relevant times is as accurate as her recollection would now allow her.
19Viewing the video and the photographs also enabled the Court to see the topography of the road to some extent and the relationship of the area where Ms Jaggard's car was parked to the two southbound lanes upon which traffic was travelling past her car, as well as the character of the southbound lanes. The breakdown lane or grass verges for a distance for a kilometre or more before the place of impact are shown in the video evidence. I accept Ms Jaggard's evidence that, apart from the wash from the passing heavy vehicle and the observations she made of the vehicles slowing down prior to pulling over to the side of the road, as well as the cars parked on the side of the road, she did not pay particular attention to vehicle passing by her vehicle in the southbound lanes during the time that she was stationary.
20Having regard to the evidence of Ms Jaggard and the evidence that emerged from the cross examination of the defendant, I am satisfied that Ms Jaggard's car headlights were on, as were the rear lights and that she had her foot on the brake at the time of impact and that thus her brake lights were illuminated. Visibility at that time was poor, primarily because of the weather conditions. There would have been ample natural light in ordinary circumstances. The impact occurred at 6.20pm on a day prior to the end of daylight saving for that year and prior to what ordinarily would have been sunset in the Goulburn area at that time. The evidence of the defendant establishes that although visibility was poor for her, at a distance of up to a kilometre she could see the brake lights of another vehicle in front of hers and shortly afterwards saw it's headlights in the sense, that she could see that it's rear lights were operating.
21The presence of Ms Jaggard's car on the side of the road ought to have been clearly observable to a person keeping a proper lookout at relevant times, even in these conditions, for at least a distance of a couple of hundred metres, but probably subject to the rise and fall of the road, a minimum of half a kilometre. There are some inclines shown in the video recording of the roadway up to the point of impact. The car of Ms Jaggard was on a downward incline on an area of roadway which, up to that point, had been relatively straight before it commenced the incline down to a depression or dip that leads finally upwards to the Towrang turnoff. Behind the point of impact, heading south, the road goes further downhill.
22The defendant conceded that as she was driving there was no obstruction to her vision by reason of the presence of another vehicle on the roadway, or any other impediment to the roadway ahead or in the breakdown lane, other than such interference to her view by the inclement weather conditions.
23Ms Jaggard's estimated her motor vehicle was pushed by the defendant's vehicle up to seventy metres from the point of impact. Other estimates recorded by the police put the distance at about fifty metres. The defendant's motor vehicle was a Toyota Landcruiser Prado, a 1999 model. I am satisfied the defendant was very familiar with the vehicle. It was leased by her schoolteacher husband, who also gave evidence as I said, and the couple used the vehicle jointly to travel up to 200,000 kilometres in varying conditions in that vehicle, including country conditions. The motor vehicle was leased under a government salary sacrifice scheme. Thus, it was fully insured and could be maintained at the cost of the lessor.
24The couple lived in a village called Bogan Gate, which is just over thirty kilometres west of Parkes. Mr Scott was the Principal of the local school. She was an experienced driver in country roads. She did not claim any ignorance of this section of the road, although that is of no real moment. The roadway itself is a reasonably high quality dual carriageway highway with a 110 kilometres per hour speed limit, clearly marked, with a discrete breakdown lane, clearly marked prior to the point of impact, with a further grass runoff alongside the carriageway at various points, perhaps continuously, for at least a kilometre before the point of impact.
25The defendant gave evidence of her movements travelling from Campbelltown to Homebush and back to Campbelltown; she then travelled down the Hume Highway southwards to the point of impact. She had four children of varying ages in the motor vehicle, and I accept that she was not fatigued, and there is no suggestion of her being affected by drugs or alcohol. She was, as with Ms Jaggard, struck by unsettled weather before eventually, south of Marulan, she met heavy rain. I accept that in the relevant area, where both the defendant's car had travelled immediately prior to stopping, and which the defendant drove along before the impact, that there was water on the road from the rain draining away, described by Ms Jaggard as not so much pools of water, but like a film of water on the road. Whether there were particular potholes or depressions in the road that had pools of water that are relevant to this impact I cannot conclude. However, of course, Ms Jaggard spoke of being struck by the "wash" of a heavy vehicle, suggesting ample water on the roadway in order for that to happen.
26There is no doubt that the conditions when the defendant was driving towards the scene of the impact had deteriorated in her own view. She had reduced the speed of her vehicle at an earlier time, much further back. She put it on cruise control at 100 kilometres per hour firstly, and then at a distance not precisely known from the point of impact, but more than a kilometre from it, she observed a motor vehicle with its headlights on, approximately a kilometre in front her, that occasionally exhibited the brake lights. She disengaged the cruise control, dropping to a speed of 80 ks per hour. The defendant's description of the brake lights coming on and off, when asked to particularise, was that up until the time that she was approximately thirty metres behind the vehicle in front of her car, the brake lights were more often off than on, but when she was approximately thirty metres from the vehicle, the brake lights were more often on than off. What is apparent on her own version is that in the time between first seeing the vehicle in front of her, and what was ultimately a "last ditch" attempt to avoid impact with that vehicle, no other vehicle crossed over from the right hand lane into the left hand lane to obstruct her view of that vehicle.
27The defendant gave evidence that the light was poor, in fact 'very dark', that 200 metres away from the car in front of her, on this near side or left hand lane, she could see the lights braking on and off but could not see the car itself. Given ample natural light in clear conditions, it is obviously that the rain and/or associated spray from the road, perhaps made by other cars or perhaps from falling rain, made conditions for road vision very hazardous. In what I am satisfied was heavy rain over a number of minutes before the impact, greater caution was being exercised by prudent drivers, as exhibited by Ms Jaggard who, as I said earlier, was forced to leave the road completely. It also was exhibited in the conduct of the vehicle in front of Mrs Scott, not to mention those drivers who had previously pulled over to the side of the road.
28Mrs Scott's report to her husband shortly after the collision, and to the police officer, Inspector Dombroski, who she spoke to at the hospital some time after the collision, was that the brakes failed or "did not work", at the time of collision. I will deal with that evidence later. It has particular legal significance in this case. She said that when she applied the brakes at a point approximately 500 metres behind the vehicle in the same lane, the brake pedal went "straight to the floor". She endeavoured to engage the brake a number of times, pumping those brakes. I am satisfied, even if the brakes did not work because of mechanical defect, that half a kilometre or slightly short of half a kilometre behind the motor vehicle in front of her, but a greater distance from the point of impact she was fully aware that her brakes did not work.
29I am satisfied on the basis of the defendant's own evidence that she did not at that time consider options such as engaging the gears to reduce the speed of the vehicle, although she had disabled the cruise control either by flicking the relevant switch or putting her foot on the brake, which would automatically disengage the cruise control. At the point when she discovered the brakes did not work she asserted her car was travelling at about eighty kilometres per hour, or was reducing quickly to that speed.
30It should be noted that this particular cruise control, as I understood her evidence, could be disengaged as most cruise control mechanisms are, by simply changing gears. The defendant was aware of the fact from her experience as a driver of over twenty years, that changing gears down from fifth gear, for example, which was the gear as I understand it at the time of impact, the speed of the vehicle could be reduced. The evidence established clearly on her own version that the defendant had ample opportunities, in terms of time, to change the gears down before impact.
31I note the submission that she could have done certain things with the benefit of hindsight. But I accept that is not the test. It is to be observed that when it was suggested to her that she could have changed down the gears, she could have otherwise put a blinker on in order to signal her wish to move into the right lane, she seemed somewhat surprised, in fact fazed by those suggestions. It was quite clear that in her reflection upon what had happened, not only had she done any of these things, but doing these things had never occurred to her at anytime.
32Of course, whether something may or may not have occurred to her, as I said, with the wisdom of hindsight, is of no assistance in determining her liability. The reason I conclude, however, these options did not occur to her, in combination with other aspects of the matters to which I have referred and will refer, is that the alternatives to simply rolling along the road with her foot off the accelerator, even pumping the brake, only arose in such a short period of time before the impact that they were not realistic options to avoid collision either with the car in front of her, or one parked outside the breakdown lane. Otherwise the reasonable driver would have had ample time to avoid the collision. The reasonably prudent options available, given the time that she had to act after the known failure of her brakes on her version, were options that were not considered.
33The defendant volunteered, on a calculation she had obviously made before the proceedings that she had 'twenty two seconds' to react before she came up to the car in front of her. This is assuming, first of all, an initial distance of a kilometre at which she first saw the car in her lane, assuming she tried to engage the brakes approximately half a kilometre behind that car and assuming a speed of eighty kilometres per hour. This calculation of the defendant was very revealing. It showed that she had applied her mind to the time it took for relevant events to occur. The problem was that the calculation was based upon an entirely false assumption. The calculations she made had cogency only if the car in front of her was stationary. She was approaching, on her own version, at a constant speed of eighty kilometres per hour. The car in front of her, however, on her version was moving forward at an unknown speed. She was unable to estimate the distance over which she travelled from the time she first saw the car with the brake lights to the point where she swerved to avoid a collision with it, to eventually collide with the stationary motor vehicle in which the plaintiff was a passenger.
34I do not propose to undertake a speculative calculation. But on her calculation of distance travelled, her estimated speed up to impact of eighty kilometres per hour, and noting a moving car in front of her, I can conclude with confidence that the defendant had more than twenty-two seconds, in fact probably considerably more than twenty-two seconds even assuming the car in front was travelling at only 40 kms per hour, to take evasive action. This is in the context of her account of driving a motor vehicle with brakes that did not work, bearing down on a car that was still moving on a major highway, albeit applying its brakes intermittently, up until she was approximately about thirty metres from it.
35There are a number of troubling aspects of the defendant's evidence. She gave evidence, for example, that realising a difficulty approaching the car in front of her without brakes, she tried to move over to the right hand lane. As I said, she had no memory of putting on a right hand blinker at any point prior to impact. I cannot conclude that she did so. She, on her own version, made no attempt to nudge into the right hand lane at the time she realised that her brakes failed. Her explanation was that she was checking her rear vision mirror at various times to try and see if there was a break in the traffic once she realised her brakes did not work. I cannot accept that there was a continuous line of traffic, be it heavy vehicles, cars or any other vehicles, that prevented her changing lanes over a distance greater than the 500 metres, she must have travelled from the time she realised, on her version, that her brakes did not work, up until the time that she took the drastic action that she did to avoid collision with a motor vehicle travelling in front of her and which she had known for some period of time was travelling slower than her vehicle. It is improbable in the conditions that a continuous line of traffic over at least a couple of hundred metres long would be travelling faster than her for the length of time that she ought to have had to change lanes.
36Again I return to her evidence that the car in front was going forward. Her brakes failed approximately 500 metres from that vehicle and in order to make up the difference between her position and that car she would have had to travel the five hundred metres, or slightly less, plus an extra distance covered by the car in front of her. In these circumstances as she herself described them, her evidence is that at a point that she estimated to be approximately three metres behind the car that was immediately in front of her, with its brakes more frequently flashing from the time that she was approximately thirty metres behind it, unable to move into the right hand lane, she veered to the left clearly to avoid a rear impact with the motor vehicle proceeding in front her to collide with the car in which the plaintiff was a passenger. This account speaks of a panicked reaction. Obviously she had not looked in the direction of the breakdown lane beforehand.
37It is overwhelmingly established that the motor vehicle in which the plaintiff was a passenger would have been in view of the defendant had she kept a proper lookout. In fact, it should have been within view for at least a couple of hundred metres beforehand. She did not see that vehicle, it would seem, until impact was about to occur. She applied her horn, she said, as impact was about to occur. Assuming this was true, this was a last act of hopeless desperation. She gave no credible explanation for not seeing the plaintiff's vehicle on the side of the road. The weather conditions and the nature of the light would not have prevented her from seeing the plaintiff's car given the period of time and distance over which she could see the car in front of her with its brake lights flashing.
38Learned Senior Counsel for the defendant suggested to that reject her account I would have to conclude she was "liar" or "quite deliberately lying". However, the vice in that submission was revealed when he also submitted that I could not accept as literal estimates of three metres behind the car in front of her and seeing the plaintiff's when she was one to two metres away. If these estimates are hyperbole on the part of the defendant, or glosses created by the urgency of the moment, and I can understand that clearly this claim could be properly made, that likewise there were 'glosses' in respect of evidence she gave about the circumstances of trying to change lanes and other aspects of her account.
39The fact of the matter is that the defendant was approaching at a greater speed upon a car that was moving forward in poor conditions and that the distance over which she knew she had no brakes, so far as she was concerned, was more than sufficient for her to take action to move either into the right hand lane or into the breakdown lane in order to roll to a stop unobstructed and stop well before she had to take dramatic evasive action. Even assuming that she thought the brakes did not work over the distance she travelled from the time the pedal went "to the floor" her vehicle could have been considerably reduced by changes of gear that would not have deprived her of control of the vehicle. Even without changes of gear, one would have thought, by the effect of friction, even on a wet road, given the gentle undulations up to the point before the incline led to the collision, there ought to have been greater reduction of speed than to a constant 80 kms per hour.
40I do not accept her evidence, however, that she would have maintained a constant speed of 80 kilometres per hour over a distance of 500 metres or more in all the circumstances. The distance over which she must have travelled was not entirely downhill and in any event immediately before the impact the incline is not that sharp. If the defendant had moved her foot from the accelerator as she claims and not maintained acceleration, irrespective of whether her brakes worked or not, the vehicle could not have maintained the same speed over a distance of half a kilometre or more. Unless, of course, it was aquaplaning for the entire distance (in which case brakes would not help) or the water conditions on the roadway were so bad that there was no friction preventing the car losing speed. These are matters that are just commonsense. Without the aid of the accelerator mere friction ordinarily would serve to reduce the speed of the car to some extent as it moved forward. There was no evidence of any reduction of speed once the car had its cruise control deactivated and it dropped down to the speed of eighty kilometres per hour.
41The impact was violent, and on the defendant's account, unexpected. The defendant, of course, cannot exclude some loss of consciousness, but claims no retrograde amnesia. I accept that she rang her husband after the event, perhaps within a number of minutes after she had been pulled from the wreckage and her children, or the children with her had been pulled out, and she told in a conversation that the brakes "did not work". They both gave evidence of this, but this is not a definitive assertion of mechanical failure in its terms. I accept that later at the hospital the defendant told the police officer, Inspector Dombroski, that the brakes "did not work", that she had pumped them and they had not operated. When she had given this more detailed description to the police officer she was aware that the collision had wrecked the car she was driving, it had, effectively wrecked the car that it hit, it had caused some injury and distress to herself and her passengers to varying degrees and she knew that the plaintiff was seriously injured.
42I point out that there was no evidence of any prior mechanical defect that would explain the brakes not working in the manner described by the defendant. There is no evidence that if the brakes on this type of motor vehicle in circumstances do not engage one can physically push the brakes to the floor and then that the brake pedal could be pumped. Nor is there any explanation as to why the brakes would not work. No police investigation was undertaken of the vehicle which, of course, is no fault of the defendant. The motor vehicle was mechanically sound. It was regularly serviced. The brake pads had been replaced in May 2004, about the time it was registered and the car had received a full 200,000 kilometre service in January undertaken by, what I understand be, an authorised dealer. There was absolutely no forewarning, according to the defendant or her husband, of any brake deficiency or any other mechanical problem with the car.
43I am satisfied on the balance of probabilities that the defendant did endeavour to engage her brake to avoid collision with the vehicle travelling in the same lane in the same direction in order to get her vehicle to slow down or avoid collision. Whether there was mechanical failure of a catastrophic type, as she would describe, or because the brakes simply did not engage because of the wet conditions on the road I cannot decide. They are the only other available alternative explanations. However, the first explanation, notwithstanding the claim by the defendant that the brake pedal went to the floor, appears the least likely given the evidence of the pre-existing mechanical condition of the car, the absence of any warning of any difficulty with the brakes, the absence of any evidence to explain such a catastrophic failure without warning and other matters. She gave no evidence of any panel lighter on her dashboard indicating any problem. Whatever alternative explanation available for brake failure does not explain the collision by a reasonable prudent driver. Neither does any other explanation offered by the defendant.
44I am not satisfied, on her own account, that the defendant did all she could to avoid impact with the vehicle that was immediately in front of her. As I have pointed out, she had a number of alternatives. I do not accept her evidence that she could not move to the right lane, unless, of course, she made that decision at the very last second, not over the period of time that she claimed that she did. It is, in my view, in the context of her manner of her giving evidence and other aspects of her evidence, a feature of her evidence that it contains elements of what I would describe as ex post facto reconstruction. Particularly, as I said, the claim that she endeavoured to get into the right hand lane. Her failure to get into the right hand lane from the time she realised she might collide with the car moving in front of her can only be explained by that choice being made by her far too late, not at a more prudent distance from that slower vehicle. There can be no doubt that she did not keep a proper lookout for vehicles in the breakdown lane. Her failure to see Ms Jaggard's vehicle until the very last second(s) is totally inexplicable, unless of course she did not keep a proper lookout.
45She also failed to properly control the motor vehicle. If she believed she had a mechanical defect, she could have taken evasive action, or steps, that could prevent collision with any other vehicle on the road, having ample opportunity to do so given the distance between her and the car immediately in front of her. She, of course, was driving a larger vehicle than the car that was travelling immediately in front of her. I appreciate, as a factor to be taken into account, that a large four-wheel drive such as this may conduct itself in a manner that is very different from a smaller sedan. But of course these larger vehicles require careful handling, if only because of their greater bulk and thus their greater momentum. On her account the car in front of her in the left lane could not have obstructed her view of anything else on the road because it was smaller than her car, and of course a person sitting in such a vehicle sits higher on the road than a person driving a sedan.
46On her own account she was driving at an excessive speed for the conditions. This is reflected by the conduct of Ms Jaggard, the conduct of the car in front of the defendant's car, her own account of the conditions, given the time of day and the rain and the character of visibility. The fact that other motor vehicles may have been travelling faster than her vehicle is really beside the point in making an assessment of whether her driving was appropriate for the conditions that she faced. Of course I accept as a general rule, as was submitted by learned senior counsel for the defendant, that she ordinarily is a responsible person. She had the responsibility of driving her own child or children and another child or children in her car. However, her own evidence establishes that she made a number of errors of judgment which defy any rational explanation.
47I turn to the hearsay representations made by the defendant after the event to her husband and a police officer who spoke to the hospital. This evidence requires particular examination in light of the importance placed upon it by learned Senior Counsel for the defendant. In her evidence in chief she did not give evidence of speaking to her husband after she got out of the wreck of the car whilst waiting to be transported to Goulburn Hospital. When her husband was called to give evidence that the motor was in serviceable condition, there was no forewarning of catastrophic brake failure and other related matters, Senior Counsel for the defendant sought to lead evidence from him of a conversation he said had occurred when he believed his wife was on the roadside near the scene of the accident. Of course, Mr Scott was not at the scene. However, I accept, as I must, that the two must have spoken shortly afterwards. With mobile phones nowadays, or even in 2005, immediate contact with a loved one in such circumstances is far easier than it would have been in years past.
48Objection was taken by senior counsel for the plaintiff to this evidence for, amongst other reasons, on the basis that the witness from whom the representation was received was available to give evidence and had not given evidence of any relevant representation or representations. To my mind this objection was a purely procedural one. It did not affect the admissibility in any event, assuming there were relevant representations to be given. Any evidence from the defendant about things she said about the incident within a reasonable period of time after the incident was receivable for hearsay purposes as "an admission" even if the "admission" was self-serving. Any evidence from the husband concerning representations made to him by a witness available were relevantly admissible under s 64 Evidence Act 1995.
49The defendant was recalled, her husband was stood down, and her evidence largely accords with the subsequent evidence of her husband. It is untainted by any suggestion of concoction. I have no doubt in this respect they are both telling the truth. Naturally the conversation was concerned about how she was and how the children were. It is important to note, however, that her evidence of her representation to her husband was that she had had an accident and that "the brakes did not work". His evidence is essentially the same, that she said that she had run into the back of a car and that "the brakes did not work". I put these words in quotes as the 'effect' of what was said, bearing in mind neither witness apparently had made a note of the words uttered. I am prepared to accept it reflects the essence or the spirit of the representations. The fact that the representation was made that the brakes "did not work" is receivable as evidence of the truth. However, it scarcely explains the circumstances in which the brakes did not work. It is a representation in its terms consistent with the fact that if the brakes were applied they did not work in the conditions, particularly when applied late, not just that they had failed through mechanical defect.
50When the defendant was at the hospital, knowing that there was a police investigation, knowing of course that at least one person had been seriously injured (she had seen the plaintiff brought into hospital in a serious condition) the defendant told the police officer, who conducted apparently a cursory interview of which no contemporaneous notes survived, words to the effect, "Could you please check the brakes, the brakes failed." I am prepared to accept that she said these words to the police officer. I have no evidence directly of what the police officer understood the representation to be, but I also note that there is no contemporaneous record that exists to assist the defendant to remember exactly what was said.
51A document prepared in September 2005, nearly six months after the accident, in 'third person' terms, summarises, in the context of a report to a police prosecutor, the recollection of the officer who spoke to her. The summary asserts:
"She stated that she has touched her brakes to release the cruise control and slow down. She has then realised that the vehicles (sic) in front of her were in fact travelling a lot slower than she originally thought, and has applied the brakes and she stated to me at Goulburn Base Hospital and again later in an interview that the brake pedal went straight to the floor, continued to pump the brakes but they did not work." (emphasis added).
52Apparently, according to this report, she claimed to police that she believed that she may have chipped a bone to her right ankle in the circumstances of the collision that caused the car to flip on its side and turn in the opposite direction and force another car approximately fifty metres or more down the road. One would scarcely be able to attribute a particular event to such an injury. Be that as it may, whilst representations of the defendant to the police officer are not recorded in the first person, where no contemporaneous note exists to confirm the report's accuracy, and when the report itself follows five to six months after the event, although it may be not entirely accurate, I accept that the words as recorded by the police officer in the report represent fairly accurately the representations made by the defendant and are available for hearsay purposes. I also accept that they generally show a consistent account given at the hospital to the version given in court as to the circumstances of discovering that the brakes did not work and that the defendant had pumped the brake pedal.
53Although this is evidence of the 'truth' or 'fact' of what happened, it does not make it truthful. The account given needs to be considered in context in any event. Aspects of it present a different flavour to the circumstances of the collision that presented in the evidence of the defendant. Certainly it is a more detailed version of the circumstances in which the brakes did not work than remembered by the defendant. I have considerable difficulty accepting that it represents the truth of the matter in so far as the assertion is made that the brake pedal went straight to the floor and the defendant "continued to pump the brakes." This of course is the account she gave in the hearing of the Court but in somewhat different circumstances. I asked rhetorically of counsel, "If a brake pedal went to the floor how did it re-engage to enable her to keep pumping it?" Senior counsel says, "Well brake pedals have a mechanism for that to happen." That may be so, but I ask rhetorically again if the brakes completely failed without warning, in circumstances where without explanation mechanically of how it could be possible for the brake pedal to go all the way to the floor, then is there any rational explanation available to the Court as to how the brake pedal could re-engage for her to continue to pump?
54But these are to some extent matters of speculation. More importantly, the version recorded in the report prepared by the police officer has other troubling aspects. If the brakes worked to disengage the cruise control, why did they then suddenly fail? Why did she need to push the pedal to the floor in an act of desperation by a prudent driver in wet conditions when 500 metres from a slower vehicle? The version given to the police officer it must be said when closely examined, and making allowance for the fact that it is in the third person and the police officer's contemporaneous notes, if they ever existed, are no longer available, has the flavour of a recounting of a sudden event. Coming across a car going more slowly than she expected - a sudden braking in wet conditions and an inability for the brakes to work in a state of emergency. She realised the car was moving more slowly than she anticipated more suddenly than the account given in this Court.
55Of course, putting aside the issue of whether the brake pedal went to the floor, this is not the account the defendant gave in Court. The defendant's account in Court in fact supports, in its own terms, some of the particulars of negligence by the plaintiff in material respects. Reflecting, as it does, a realisation of brake failure a long time before any real emergency and a failure to take what may be seen objectively as reasonable and/or prudent steps to avoid a collision.
56Senior counsel for the defendant sought to assert during the argument concerning the admissibility of the representations that the police record and the husband's evidence may be seen as "corroboration" of the defendant's account. It may be support for the fact that those representations were made, but it is not corroboration of the truth of what the defendant asserted. The fact that the defendant and her husband told the truth about their phone conversation does not make her version of the collision necessarily truthful. As I said, it supports the fact that some representations were made of a similar or identical character, but that is all. The representations of which evidence has been given made to the husband are not complete and are not entirely consistent with what occurred.
57Like all hearsay, the truth of what is asserted is dependent upon the truthfulness, reliability and accuracy of the maker of the relevant representation or representations. The defendant has endeavoured in two different ways to put a gloss upon what happened to explain the inexplicable in her mind. This being, how she could lose control of a vehicle, travelling at a particular speed in the conditions, and strike the back of a stationary car that she did not see until after her decision to veer from the breakdown lane.
58I am satisfied comfortably on the balance of probabilities that she lost control of the vehicle because her brakes were not engaged or could not be engaged for whatever reason and she swerved into the breakdown lane to avoid a collision with a motor vehicle fast coming towards her, as she told the police officer in the summarised version set out in exhibit 3. I am satisfied comfortably on the balance of probabilities that she lost control of the motor vehicle in circumstances where she clearly was not driving safely in the conditions. Further, she failed to take a number of opportunities that were available to her to avoid the collision in the ways that I have outlined. As I have said, the circumstances in which she swerved to hit the plaintiff's motor vehicle without seeing it, arose suddenly because the emergency that she realised occurred had happened far more suddenly than she is now prepared to admit.
59I have already dealt with the issue of whether she is deliberately lying. I do not have to make a finding in relation to that; to make such a finding in all material respects would be reckless in any event. But there are many reasons not to accept the version of the defendant and to conclude that she has coloured a version in her evidence in this Court. If one were seeking to identify a purpose - although no purpose was put to her - it may be to reconstruct events that she cannot explain or cannot precisely remember. The other purpose may be to assuage her concern about her responsibility for her conduct. Of course, on the surface, the defendant appeared to be a decent person of otherwise good character. I have already indicated I accept she has a background of very careful driving and is an experienced driver. However, I have also pointed out that the options she claimed that she had to avoid collision with the car in front of her as the only options, all speak of last second or 'last minute' decision making in circumstances, as I said earlier, where she had ample time to confront the fact that she was, on her version, without brakes.
60Some of the hallmarks of the unreliability of her evidence include the fact that she sought to down play the conditions in her evidence immediately before the accident, preferring to describe the rain falling as "steady" rather than "heavy" as it was described by Ms Jaggard. The defendant did not embrace the idea of water on the road or pools, or otherwise. The fact that Ms Jaggard's car was washed with water, only a very short distance from the point of impact, a matter of metres, reflects either a layer of water over the road or pools of water consistent with the accumulation of water from heavy rain.
61It is not to be forgotten, on Ms Jaggard's version, that it had been raining heavily for a matter of some minutes, at least before the defendant's motor vehicle came into collision with her motor vehicle in the same immediate stretch of road. The account given by the defendant that her car did not reduce in speed after it dropped to eighty kilometres per hour on the disengagement of the cruise control, notwithstanding the distance it covered, or must have covered before the impact, does not accord with a motor vehicle moving forwards, even in fifth gear, with no further application of the accelerator. On her own version, unable to explain why she did not take earlier evasive action, the last ditch frantic efforts by the defendant to avoid a collision with a car in front of her were directly consequential upon mistakes made sometime earlier and were clearly avoidable, reasonably avoidable, if she had taken reasonable steps.