Smith v NRMA Insurance Ltd

Judgment

1. THE COURT: This tragic case is an illustration that the unmodified common law is capable of operating arbitrarily when applied to personal injury claims arising out of motor vehicle accidents.
2. The appellant, then a little boy not quite two years of age, suffered catastrophic injuries in a collision which occurred on 7 September 2004, nearly 13 years ago. He was a rear seat passenger in a car driven by his father. The car was struck by a van travelling in the opposite direction when the van suddenly crossed a median strip onto the incorrect side of a divided major road. The appellant's father was blameless. The driver of the van, Mr Messruther, was pronounced dead at the scene. His death was the result of cardiac arrhythmia leading to cardiac arrest.
3. The appellant, by his tutor, sued the respondent, Mr Messruther's insurer, in the Common Law Division of the Supreme Court. [1] The sole issue in the proceeding was whether Mr Messruther was conscious and in control of the van immediately prior to the collision or whether he was already unconscious or otherwise incapacitated by his heart attack. As the primary Judge (Button J) explained: [2] "…In short, the dispute between the parties centres on a question of fact: when did Mr Messruther suffer the heart attack, before the collision, or as a result of the collision?"
4. At the trial, the parties agreed that the appellant had to prove on the balance of probabilities that Mr Messruther was conscious and in control of the van at the time of the collision. If the appellant discharged that burden he would have established that Mr Messruther had been negligent and doubtless would have been awarded very substantial damages. If not, he would not be entitled to recover damages from the respondent since the accident pre-dated the introduction of the "blameless accident" provisions of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). [3]
5. The primary Judge determined the liability of the respondent as a separate question. His Honour was not satisfied on the balance of probabilities that at the time of the collision Mr Messruther was conscious and driving. [4] Accordingly his Honour gave judgment for the respondent.
6. The primary Judge gave judgment on 3 November 2014. The appellant filed a notice of intention to appeal on 20 November 2014. The Notice of Appeal was filed out of time, on 2 October 2015. However, the appellant provided an adequate explanation for the delay and the respondent did not actively oppose an extension of time for the filing of the Notice of Appeal. Accordingly, an order extending time should be made.
7. The primary Judge gave nine reasons for concluding that he could not be satisfied that Mr Messruther was conscious and driving at the time of the collision. [5] The appellant's Amended Notice of Appeal challenges a number of factual findings underlying the primary Judge's reasoning. Mr Gross QC, who appeared for the appellant, accepted that if the challenges succeed, this Court should not make its own findings, but should order a new trial on the issue of liability.

Factual background

1. The primary Judge described the scene of the accident as follows: [6] "[6] … At the time of the accident, the Great Western Highway consisted of three through lanes of traffic each way travelling east and west, separated by a raised median strip. As one travelled along the Great Western Highway in an easterly direction some hundreds of metres from the west of the intersection, one crossed Roper Road, John Hines Avenue, and Carlisle Avenue in that order. As one travelled in the same direction between the intersection with John Hines Avenue and the intersection with Carlisle Avenue, the Great Western Highway gently curved to the right (that is, to the south). [7] There were traffic lights at the intersection of the Great Western Highway and Carlisle Avenue. At this intersection there were also additional right hand turn lanes on both sides of the road, closest to the median strip. Travelling in an easterly direction, there were three through lanes and one right hand turn lane. Travelling in a westerly direction there were three through lanes and two right hand turn lanes.
2. Consistently with the approach of the primary Judge, we shall refer to the kerbside lane on each side of the road as "lane one", the adjacent lane as "lane two" and so on.
3. It assists in understanding the circumstances of the accident to have available a plan of the area prepared by Dr Gibson, a biomechanical engineer, whose reports were tendered on behalf of the appellant. The plan (Figure S1) is reproduced below:
4. At about 12 noon on 7 September 2004, the appellant was restrained in a booster seat behind the driver's seat of a Mitsubishi Verada station wagon driven by his father, Mr Smith. The appellant's mother, Mrs Smith, was in the front passenger seat.
5. The family was driving home in a westerly direction along the Great Western Highway (Highway). The Mitsubishi stopped at the traffic lights at the intersection of the Highway and Carlisle Avenue. At that point the Mitsubishi was in lane two or three, behind approximately five vehicles.
6. A Kenworth prime mover with an unladen trailer attached stopped at the same traffic lights. The prime mover was being driven by Mr Sampson and was also proceeding in a westerly direction along the Highway. When the prime mover stopped at the lights it was a little distance behind the Mitsubishi.
7. In the meantime, a Toyota van was being driven in an easterly direction along the Highway, towards the intersection. The driver was Mr Messruther, aged 61. The van stopped in lane two of the Highway at the traffic lights at the intersection with Roper Road, about 600 metres west of the Carlisle Avenue intersection.
8. A VT Commodore being driven by Mrs Graham stopped at the Roper Road intersection in lane one, next to the van. Mrs Graham was accompanied by her partner, Mr Graham. She intended to proceed east along the Highway and to turn left (towards the north) onto Carlisle Avenue in order to reach Mt Druitt Market Town. The VT Commodore was the first vehicle in line at the lights in lane one, while the van was first in line in lane two.
9. When the traffic light at Roper Road turned green, the van accelerated and overtook the VT Commodore. Somewhere in the vicinity of the intersection with John Hines Avenue, about 500 metres west of the Carlisle Avenue intersection, both Mrs Graham and her passenger, Mr Graham, observed the van drifting from side to side. The Grahams gave evidence that Mrs Graham increased her speed to obtain a better view of the driver of the van and that she also flashed her headlights and sounded the horn in an endeavour to attract the van driver's attention and to warn other road users of the danger.
10. While this was happening, the Carlisle Avenue traffic lights facing to the east turned green and the Mitsubishi driven by Mr Smith, travelling west, began to cross the intersection. The prime mover also moved off towards the intersection.
11. As the van approached the Carlisle Avenue intersection, it crossed the median strip onto the wrong side of the Highway, became airborne and then collided with the front right hand side of the Mitsubishi. The collision pushed the Mitsubishi into the path of Mr Sampson's prime mover. The result was that the prime mover collided with the rear right hand side of the Smiths' station wagon and caused the terrible injuries suffered by the appellant.
12. Mrs Graham estimated that the van had been travelling at about 75 kph from the time it accelerated after the Roper Street lights turned green. A vehicle travelling at that speed over 600 metres (the approximate distance from Roper Street to the point of collision) would take about 29 seconds to cover the distance. The speed limit in the area was 80 kph.
13. A post-mortem examination found that Mr Messruther had an enlarged heart, a condition known as cardiomegaly. This condition predisposes a person to cardiac arrhythmia.

The Primary Judgment

1. The primary Judge recounted the statements made and evidence given by the lay witnesses, namely, Mr Smith, Mrs Smith, Mr Sampson, Mrs Graham and Mr Graham. His Honour carefully recorded differences between the statements made by each of the lay witnesses relatively soon after the accident and those made approximately nine years later, in anticipation of the hearing. The first set of statements was taken by police officers for the purposes of making reports to the Coroner.

Medical evidence

1. The primary Judge recorded that the medical notes revealed that Mr Messruther had generally been in good health prior to the accident. Despite the post-mortem results, there had certainly been no history of cardiac problems. [7]
2. His Honour referred to a joint expert report by two consultant cardiologists, Drs Brender and Herman. The cardiologists agreed that the likely cause of Mr Messruther's death was cardiac arrhythmia and that he may have had no warning of premonitory symptoms before losing consciousness. The cardiologists also agreed that following the onset of cardiac arrhythmia Mr Messruther would have lost consciousness almost instantaneously. Hence he would not have been in control of the van or able to stop it. [8] The cardiologists further agreed that the evidence of some lay witnesses to the effect that Mr Messruther was "slumped over" and that the van was moving erratically was consistent with Mr Messruther having lost consciousness prior to the collision. [9]

Dr Gibson's evidence

1. The primary Judge next discussed the evidence given by Dr Gibson, a biomedical engineer whose reports were tendered on behalf of the appellant. Dr Gibson noted that the Highway curved slightly to the right on the approach to Carlisle Avenue from the west. This stretch of the Highway had an adverse camber that allowed drainage into the kerbside gutter from the median. On the basis of evidence from the Grahams that the van had drifted to the left and then the right as it approached the intersection, Dr Gibson opined that Mr Messruther was in control of the vehicle. Dr Gibson reasoned that a vehicle, if the steering is not engaged, tends to follow down the line of the camber, in this case towards the northern kerb of the Highway.
2. The primary Judge summarised the reasons given by Dr Gibson for concluding that Mr Messruther was conscious and in control of the vehicle, as follows: [10] "[61] First, he travelled a distance of about 600 metres at approximately 75 km/h without deviating markedly from his lane. [62] Secondly, that was so notwithstanding the adverse camber towards the northern gutter. [63] Thirdly, he negotiated the right hand curve in the road. [64] Fourthly, he steered to the right to avoid a collision with the eastbound traffic stopped at the Carlisle Avenue traffic lights. [65] Fifthly, Mr Sampson, who had a clear view over the traffic from his position in the driver's seat of the prime mover, saw Mr Messruther sitting upright."

Credibility of witnesses

1. In the section of the Primary Judgment headed "Determination", his Honour found that each of the witnesses who had given oral or written evidence was endeavouring to tell the truth. In his view, it was completely understandable that witnesses who attempted to recall events which had taken place nine or ten years earlier would experience inaccuracies of memory. If there was a "notable distinction" between what a witness had said in a statement in 2004 and what he or she said in a statement in 2013 or in oral evidence in 2014, his Honour preferred the version given closer to the time of the collision. [11]

The Grahams' evidence

1. The first of the nine reasons given by the primary Judge for not being satisfied that Mr Messruther was conscious and driving at the time of the collision was that he accepted evidence given by the Grahams. Earlier in the Primary Judgment, his Honour summarised their evidence. [12]
2. In her statement made seven weeks after the accident Mrs Graham, who at the time was a schoolteacher, [13] said that she was travelling at about 75 kph in lane one when she became aware, as she approached the intersection with John Hines Avenue, that a white van was travelling in the middle lane slightly in front of her vehicle. She saw the van slowly swerving back and forth across the lane. Initially she thought that the driver of the van was not paying attention. However, she looked through the rear window of the van into the driver's compartment and saw the driver slumped over to the left, with his head limp and swaying with the movement of the vehicle.
3. Mrs Graham said in her statement that she formed the view that the driver was unconscious. She increased her speed slightly to keep up with the van, flashed the headlights on her vehicle, sounded the horn and yelled in an attempt to rouse the driver. She did not succeed. The driver of the van made no voluntary movements and remained limp, slumped to the left. When Mrs Graham realised that the van driver had passed out completely she pulled over off the Highway on to the grass verge.
4. In her witness statement made in December 2013 Mrs Graham gave a somewhat more detailed account of what she had observed. In this statement Mrs Graham said that she could initially see the driver of the van through its rear window. She was able to see the upper part of the driver's body. The driver was slumped over to the passenger's side of the van and his head appeared limp. According to Mrs Graham she increased the speed of the VT Commodore until it was adjacent to the van. She looked through the passenger window of the van and saw that the driver appeared unconscious, although his hands were on the steering wheel. At this point Mrs Graham flashed her headlights, sounded her horn and yelled but the driver did not respond.
5. Mr Graham made his first statement on the same day as his wife. At that time he was a carpenter and joiner but at the time of the trial he was a police officer. Mr Graham said that his first impression on seeing the van was that the driver was leaning over to get something out of the glove box. But then Mr Graham saw that the driver appeared to be limp and lifeless. Apart from a slight movement matching the contour of the road, Mr Graham could not detect any movement by the driver of the van. Mr Graham confirmed that Mrs Graham had acted as she described in an attempt to rouse the driver of the van, but the driver remained limp. Mr Graham thought he was dead already.
6. In Mr Graham's December 2013 witness statement he said that after the van drifted into lane one and back into lane two Mrs Graham increased speed and caught up with the van. As the VT Commodore pulled alongside the van, Mr Graham looked through the van's passenger window and saw the driver's right shoulder jutting above the window. He could not see the driver's hands on the wheel. Mr Graham got the impression that the driver was leaning over to get something from the glove box, but then saw that he was slumped over and not moving. At that point Mr Graham thought that the driver had suffered a heart attack or stroke. Mrs Graham then acted to attract the driver's attention and warn others, but the driver did not respond.
7. The primary Judge gave the following reasons for accepting the Grahams' evidence: [14] "[90] … I do not consider that they have somehow reconstructed their perception that Mr Messruther was lifeless based upon what they saw of him at the scene of the collision. In their original statements, they each spoke of the steps taken by Mrs Graham in order to rouse Mr Messruther. Although the phrase 'keep up with' used by Mrs Graham in her original statement was ambiguous as to whether she was adjacent to the van of Mr Messruther or behind it, I am satisfied that she was describing the former situation. I also consider that the fact that Mrs Graham pulled her car off the Highway powerfully corroborates the proposition that she had seen something very dangerous, and wished to protect herself and Mr Graham. Finally, whilst I accept that there are inconsistencies between the evidence of Mrs Graham and Mr Graham (for example, about whether the van drifted within its lane or out of its lane and into the lane in which the Grahams were travelling), I regard those inconsistencies as entirely natural, and as supporting their evidence rather than detracting from it."

Other reasons

1. His Honour explained the other eight reasons for rejecting the appellant's case, as follows: [15] "[91] Secondly, it is true that the van was able to stay on the Highway as it travelled east for some little time. But the parties were not in dispute that the distance over which the Grahams observed it was around 600 metres, and that it was travelling at approximately 75 km/h. In other words, it stayed on the road for approximately 29 seconds. It was seen to drift at the least within a lane, and possibly from lane to lane. I have seen for myself that the curve to the right (that is, to the south) is a reasonably gentle one. I have also seen that the camber to the left (that is, to the north) is very gentle indeed. To my mind, one would expect a vehicle that was not being driven to stay on the road for some little time and eventually collide with another vehicle or a stationary structure; tragically, that is exactly what happened. [92] Thirdly, I do not consider that Mr and Mrs Smith were in a position to observe the angle at which the van crossed the median strip with complete accuracy. In other words, I am not satisfied that the van veered to the right in a way suggestive of a conscious manipulation of the steering wheel at that time. [93] The emergency to which Mr and Mrs Smith were subject was unexpected, terrifying, and life threatening. After the collision they were both in shock and highly distressed about the injuries to their son. [94] It is noteworthy that in his original statement Mr Smith spoke of the fact that 'the vehicle appeared to move very abruptly from lane 3 into the turning lane in lane 4' [emphasis added]. Mrs Smith stated that 'I [noticed] a white van coming from the opposite direction ... I saw the white van start to veer towards the medium [sic] strip'. In other words, it is not the case that Mr or Mrs Smith stated with perfect clarity that they saw the van driving normally, and suddenly undertake a pronounced veer that could only be explained by driver input. [95] In short, whilst I completely accept that at all stages Mr and Mrs Smith have sought to tell the truth, I consider that the van veering towards them was a completely understandable impression that they obtained, rather than something that actually occurred in such a way as to demonstrate driver input. [96] Fourthly, I think the same can be said, to a lesser degree, about the evidence of Mr Sampson on the same topic. … [I]n the frightening and shocking circumstances, he gained a wholly natural impression of the van veering as if being driven, rather than actually having been in a position to make that assessment accurately. [97] Fifthly, for the same general reasons, whilst it is not insignificant that Mrs Graham originally referred to the van 'veering' to the right, I do not regard the use of that expression as determinative. Furthermore, it is clear that she used that expression when describing the van when it was originally moving within its lane, and continued to use it when she described its passage over the median strip. [98] Sixthly, I accept that Mr Sampson saw Mr Messruther sitting behind the wheel in an upright position as the van careened over the median strip. But it is noteworthy that Mr Messruther was restrained by his seatbelt at that stage. I also accept that one would expect the movement of the van over the hump of the median strip to create an upward force upon Mr Messruther. I regard the fleeting impression that Mr Sampson obtained as being generally consistent with the unconscious person of Mr Messruther being restrained by the seatbelt and thrust into an upward position by the movement of the van. As for the greater detail given by Mr Sampson in his statement nine years after the event, I consider that there is a degree of entirely sincere reconstruction in that document; as I have said, my emphasis is upon what was first said by each witness at the earliest stage after the collision. [99] Seventhly, if it was indeed the case that the final turn to the right was conscious evasive action taken by Mr Messruther, one would surely see signs of concomitant braking. And yet there was none. [100] Eighthly, I have reflected carefully upon the fact that both Mr and Mrs Graham observed the van to speed up, and that both of them said so in their original statements to police. That is in the context of me having observed that there is a slight incline upwards to the west of the intersection in question as one travelled east on the Great Western Highway. [101] But in the end I have come to regard the observation of acceleration as significant but not determinative. It is possible that Mr and Mrs Graham were mistaken, and gained the impression of the van accelerating as the situation became more frightening and more dangerous as the van approached the parked cars in front of it. It is also possible that the weight of the leg of the unconscious Mr Messruther pressed down onto the accelerator. Finally, I also think it is possible that, as part of the effects of the heart attack, Mr Messruther suffered a seizure that caused his leg to press on to the accelerator. [102] Ninthly, while I do not deprecate the expertise of Dr Gibson, I respectfully consider that his evidence can be subject to some valid criticisms. First, Dr Gibson's expertise is in biomedical engineering. Although he also has specialised knowledge of vehicle dynamics, I do not consider that his opinion on the determinative issue of whether Mr Messruther was conscious or not is conclusive. Secondly, Dr Gibson's evidence was based on witness statements, some of which can be discounted to a degree for the reasons that I have given above. Thirdly, the opinions of Dr Gibson about the presence of driver input derived from the behaviour of the van cannot account for the evidence of Mr and Mrs Graham of what they saw of Mr Messruther before the collision. [103] In short, considering all of the evidence as a whole, and refraining from giving any one particular piece of evidence prominence, I am not satisfied on the balance of probabilities that Mr Messruther was conscious and driving at the time of collision. Indeed, I tend to the view that the defendant has established on the balance of probabilities that he was unconscious at that time, and had been so from the time when Mr and Mrs Graham first observed the unusual behaviour of the van. But because of the joint position of the parties about the onus and standard of proof, such a finding is not necessary for the defendant to succeed."

Appellant's submissions

1. The appellant's Amended Notice of Appeal contains seven grounds. Grounds 1, 3 and 6 essentially contend that the primary Judge should not have regarded the Grahams as credible witnesses having regard to inconsistencies in their versions of events, "inherent implausibilities" in their evidence at the trial and the whole of the evidence. Mr Gross pointed to what he said were discrepancies between the various accounts given by Mrs and Mr Graham in their statements and oral evidence. In his oral submissions, Mr Gross invited this Court to conclude that the Grahams were unreliable witnesses and that their evidence was affected by "confabulations".
2. Ground 2 relies on the primary Judge's acceptance of Mr Sampson's evidence that when the van crossed the median strip he observed that Mr Messruther was sitting in an upright position with his hands on the steering wheel. According to Mr Gross, Mr Sampson's evidence was inconsistent with the Graham's version which had Mr Messruther, prior to the van hitting the median strip, lying more or less horizontally on the front seat. The primary Judge erred, so Mr Gross argued, in not considering the significance of the inconsistency.
3. Ground 4 complains that the primary Judge erred by failing adequately to consider the whole of the medical evidence and by relying on particular passages in the medical evidence. The written submissions in support of this ground indicate that the principal complaint is that his Honour's consideration of the medical evidence: "…did not show sufficient recognition that if the detailed evidence of Mr and Mrs Graham was unreliable and significantly exaggerated, the written and oral opinions of Drs Brender and Herman were deprived of weight…". This complaint is therefore dependent on whether the appellant can make out the attack on the primary Judge's acceptance of the Grahams' evidence.
4. Ground 5 contends that the primary Judge erred in failing to consider whether Mr Messruther was negligent after the onset of cardiac arrhythmia in not taking his foot off the accelerator or braking so as to avoid danger to other road users.
5. Ground 7 attacks the findings by the primary Judge that the curve to the right in the Highway was "reasonably gentle" and that the camber to the left was "very gentle indeed". [16] The appellant's written submissions did not develop Ground 7. However, in his oral submissions, Mr Gross contended that the primary Judge should not have set himself up as an expert and should have accepted Dr Gibson's evidence that Mr Messruther was conscious and in control of the vehicle at the time of the collision.

Observations as to the evidence

1. Several points should be made at the outset concerning the evidence before the primary Judge and the conduct of the trial.
2. First, although extracts from various police notebooks were in evidence, it appears that the police did not undertake a forensic examination of the scene of the collision. However, an officer of the Engineering Investigation Section reported that an examination of the van disclosed no mechanical defect or component failure which may have been a contributory factor to the collision.
3. Secondly, one of the matters relied on by the primary Judge was that there was no evidence that the van had braked prior to the collision. [17] His Honour regarded the absence of any such evidence as a strong indication that Mr Messruther was not attempting conscious evasive action immediately before the collision. The Amended Notice of Appeal contains a ground challenging the finding that there was no evidence of braking, but Mr Gross did not press that ground in his oral submissions. Accordingly, the appeal must be assessed on the basis that there was no evidence that Mr Messruther attempted to brake before the collision occurred. As the primary Judge found, this is a significant indication that Mr Messruther was not in control of the van immediately before the collision.
4. Thirdly, there is no dispute that the cause of Mr Messruther's death was cardiac (ventricular) arrhythmia (cardiac arrest). The two specialist cardiologists prepared reports and gave evidence in conclave. As the primary Judge recorded, they agreed in their joint report that Mr Messruther may have had no premonitory symptoms before losing consciousness and that the onset of ventricular arrhythmia would have caused him to lose consciousness almost instantaneously. They also agreed that this would have meant that Mr Messruther would not have been in control of the vehicle and would have been unable to stop.
5. The joint report was the subject of discussion in the conclave. In his report of 21 March 2013, Dr Herman had expressed the view that if the arrhythmia suffered by Mr Messruther was due to ventricular fibrillation, it would usually take between six and ten seconds for syncope (loss of consciousness) to occur. Dr Herman was not asked in the conclave specifically about the reference to six to ten seconds in his March 2013 report. Both cardiologists were, however, asked about the time within which Mr Messruther could have become unconscious: "STITT: Dr Brender, I want you to assume that the events that the witnesses described in their statement and the events about which I have been asking you occurred over a distance of approximately 600 metres. It may have been a little less, it may have been a little more. The evidence also is that the van was travelling at a speed of about 75 kilometres per hour. That combination of factors means that the behaviour of the van occurred within a time frame of 28 and a half seconds. In other words, it happened over a very short period of time, over a relatively short period of distance. Is that lapse of time consistent with the driver having a cardiac arrythmia [sic] event, becoming unconscious and travelling in the way in which it was described? Is that again consistent over such a relatively short period of time in your opinion? WITNESS BRENDER: Yeah, it's consistent. STITT: Dr Herman, do you have a view about that, please? WITNESS HERMAN: It's entirely consistent again with someone who has had a cardiac arrest. WHEELAHAN: Doctors, in your joint report at question 5 you said that, 'We would have expected the onset of ventricular arrythmia [sic] to have caused almost instantaneous loss of consciousness and hence he would not have been able or been in control of the vehicle and would not have been able to stop.' Is that correct, Dr Herman? WITNESS HERMAN: It is, Mr Wheelahan. WHEELAHAN: Dr Brender? WITNESS BRENDER: Yes. WHEELAHAN: If the driver was observed, you can accept from Mr Stitt, from approximately 600 metres out from the point of collision to have been slumped over and apparently immobile, he would be capable of no driving input, would he? Dr Herman? WITNESS HERMAN: No, he wouldn't be. WHEELAHAN: Dr Brender? WITNESS BRENDER: No, he wouldn't be in control. WHEELAHAN: Would he be able to steer the vehicle? WITNESS HERMAN: No, absolutely not. WITNESS BRENDER: No."
6. The primary Judge accepted the evidence of Drs Brender and Herman but did not include their opinions as one of the nine reasons for concluding that he could not be satisfied on the balance of probabilities that Mr Messruther was conscious and driving the van at the time of the collision. Nonetheless the uncontradicted evidence of the two cardiologists provides strong support for that conclusion. Indeed, their evidence supports his Honour's view that the likelihood was that Mr Messruther had been unconscious from the time the Grahams first observed the unusual movements of the van.
7. Fourthly, it is important to appreciate that at no stage did senior counsel then appearing for the appellant challenge the truthfulness of either Mrs Graham or Mr Graham. A submission was made to the primary Judge that the Grahams had engaged in "confabulation". While it is not entirely clear what that word was intended to convey, the submission may have related to a suggestion made in cross-examination that the Grahams had discussed their recollections as to moving alongside the van before giving their evidence. Mr Graham agreed that he and his wife had discussed many aspects of the events they had witnessed, but denied discussing the fact that their earlier statements had not specifically mentioned that at one stage the VT Commodore had drawn parallel with the van.
8. Whatever the "confabulation" submission was intended to convey, senior counsel for the appellant stated expressly to the primary Judge that he could not and would not accuse the Grahams of being untruthful. [18] Thus, although the appellant's grounds of appeal assert that the Grahams should not be accepted as "credible witnesses" and some of Mr Gross' submissions seemed calculated to cast doubt on the honesty of their evidence, it is not open to this Court to find that the Grahams were not endeavouring to tell the truth.
9. Fifthly, the Grahams were not challenged on important elements of their evidence. The cross-examination of Mr Graham (who gave evidence first) concentrated on his claim in his 2013 statement that the VT Commodore, travelling in lane one, had drawn level with the van which had drifted from lane two into lane one and back again. The cross-examiner challenged Mr Graham's account primarily on the ground that in his original 2004 statement he had not mentioned that the VT Commodore had drawn level with the van. The point of the cross-examination appeared to be that Mr Graham could have observed the driver of the van only through the van's rear window and therefore (presumably) his impression (recorded in his original statement) that the driver was "limp and lifeless" could not have been accurate or at least was consistent with the van driver being conscious.
10. Mr Graham was not challenged on his statement that Mrs Graham had flashed her headlights and sounded the horn in an attempt to rouse the driver of the van and to warn other motorists. Nor was Mr Graham directly challenged on his statement that it looked to him as though the driver of the van had a heart attack or stroke and was already dead when he failed to respond to Mrs Graham's actions.
11. The cross-examination of Mrs Graham followed a similar pattern. She said in her 2013 statement that she saw the driver of the van after she increased her speed so that the VT Commodore was travelling adjacent to the van. It was put to her that she had not said this in her 2004 statement. Mrs Graham was, however, not challenged on her account of the actions she took to rouse the driver of the van and alert other road users to the imminent danger she perceived.
12. Despite the absence of a challenge, Mrs Graham was permitted to expand on her account in re-examination: "Q. What was it that you actually did in relation to your car and the juxtaposition of the white van, what did you actually do? A. From being behind? Q. Yes? A. As he was sort of drifting to the right after being into the left I quickly pulled up, sped up and to keep up with him (witness indicates)-- Q. You are holding your two hands in parallel? A. Sorry. Q. It's all right. Is that what you are demonstrating? A. Yes, that I was behind him and then I sped up quickly, because it was quickly, to make sure that what I had seen from behind was true and correct, that he was passed out. Q. And you are still holding the two hands in a parallel position? A. Yes. I quickly just looked. I was driving, looking, and [Mr Graham], I don't remember any conversation, but I looked and saw him slumped over unconscious with his hands on the bottom of the steering wheel, but no - because we were still beeping and making noise and yelling and I - he didn't make any, he didn't respond at all. So then when we have moved quickly backed because I knew that he was unconscious. Q. And over what period of time was it that you travelled parallel to the white van? I know it is difficult, but doing-- A. You mean while I was next to him? Q. Yes? A. A couple of seconds, enough to see him passed out and not responding. Q. And then when you saw that he wasn't responding to your headlight flashing and sounding of the horn and yelling at him what did you then actually do so far as your car was concerned? A. All I remember is slowing down so I was behind him and just watched what was unfolding, so I just - I think I was still beeping horns and continued yelling because I was worried about other people there and then I remember pulling over because he had already been, gone over the other side of the median strip. Q. And you pulled over on to the left hand side? A. Yes."

The Grahams' evidence

1. The criticisms advanced by Mr Gross of the evidence given by the Grahams rested on what were said to be omissions in their initial statements compared with their second statements and internal inconsistencies in each of their accounts.
2. Some of the criticisms advanced by Mr Gross regarding the Grahams' evidence are matters that might have been put to them in cross-examination but were not. For example, Mr Gross contended that there would have been insufficient time between Mrs Graham observing the van swerving back and forth and her decision to pull off the Highway for her to have observed the condition of the van driver as she described in her statements. He made a similar argument in relation to Mr Graham on the basis that he would have had insufficient time to observe that the van driver was slumped over in a manner suggesting that he was unconscious. Neither of these propositions was put to the Grahams in cross-examination. This is not surprising. The evidence as to the distance the van travelled while behaving erratically suggests that there was more than enough time for the events to have unfolded as the Grahams described.
3. Mr Gross submitted that if the van had initially swerved into lane one, it is most unlikely that Mrs Graham would have accelerated so that the VT Commodore was adjacent to the van. However, it was never directly put to Mrs Graham that it would have been dangerous or inappropriate for her to have accelerated as she claimed. Both Mrs Graham and Mr Graham maintained in their oral evidence that Mrs Graham brought the VT Commodore alongside the van and that enabled them to see the driver through the passenger window. Mrs Graham explained that she sped up because she wanted to confirm that what she had seen from behind the van was true. In the absence of a challenge to the Grahams' truthfulness, the primary Judge was fully justified in accepting their evidence on this point.
4. Mr Gross attempted to address this obvious difficulty by contending that the account given by the Grahams in their 2013 statements was a "totally new version" of events insofar as they claimed that Mrs Graham accelerated so that the VT Commodore was travelling alongside the van for a short period. Mrs Graham's 2004 statement, as she acknowledged in her evidence, did not use the word "adjacent". But Mrs Graham did state that she had increased her speed, after which she observed that the van driver appeared to have passed out completely. The 2004 statement was not as explicit as her 2013 statement, but as the primary Judge pointed out the two are not inconsistent.
5. Mr Graham's 2004 statement did not specifically identify which "van window" he looked through. If read in isolation, the statement can be understood as referring to the rear window of the van, but it also can be understood as referring to the van's passenger window. In his cross-examination Mr Graham agreed that the 2004 statement contained no express reference to the VT Commodore travelling alongside the van and he acknowledged that this piece of information was "vital". But it was not put to him that the 2013 statement was inconsistent with his earlier account. He was, however, asked to explain the omission. He replied as follows: "As honest as I can be, that statement was made seven weeks after the accident and after witnessing that day and the things that I saw, in particular the driver, it was quite traumatic, and to be frank I didn't want to remember what we saw. But we had to recollect as best we could and I believe we did that under the circumstances." The primary Judge found that Mr Graham was a truthful witness and thus accepted this explanation. It is also to be borne in mind that the 2004 statements were taken by the police for the purposes of the Coroner. The statements were not made for the purposes of a negligence claim made on behalf of the appellant and thus did not necessarily address in detail matters of significance to such a claim.
6. Mr Gross pointed to what he said were other inconsistencies in the accounts given by the Grahams. For example, Mr Gross said that Mr Graham's 2004 statement claimed that Mrs Graham flashed her headlights and activated the horn when the VT Commodore was behind the van, but said in his 2013 statement that Mrs Graham took these actions after she drew alongside the van. The same criticism is made of Mrs Graham's statements. It is by no means clear that either Mr Graham's 2004 statement or Mrs Graham's 2004 statement should be interpreted in the manner proposed by Mr Gross. In any event, no cross-examination was directed to the issue, so that the Grahams did not have the opportunity to address any suggested inconsistency.
7. Mr Gross also pointed to what were said to be inconsistencies as to precisely when and where Mrs Graham pulled over to the grass verge of the Highway. In his evidence, Mr Graham acknowledged that he could not be specific as to where Mrs Graham had pulled up. Mrs Graham said in her original statement that she pulled over when she realised that the van driver had passed out completely. This was the critical piece of evidence and Mrs Graham was not cross-examined about it.
8. The primary Judge recognised that there were some minor inconsistencies in the Grahams' accounts but considered that they were attributable to "completely understandable inaccuracies of memory". No basis has been shown to challenge that assessment.
9. Two additional matters support the account given by the Grahams as to Mr Messruther being "limp and lifeless" (Mr Graham) or "slumped to the left and limp" (Mrs Graham). A "Report of Death to Coroner" prepared by a police officer on the evening of the collision recorded that witnesses stated "…that prior to the collision the driver of [the van] was seen slumped over towards the passenger side of his vehicle". It can be inferred that the report recorded information provided by Mr and Mrs Graham either at the scene of the collision or shortly after it occurred.
10. The second additional matter is that each of the reports prepared by the cardiologists refers to a statement by a third witness to the collision, a Ms Cornett. The reports record Ms Cornett as stating that Mr Messruther "appeared to be holding on to the steering wheel but was slumped slightly towards the passenger side of his van". While Ms Cornett's statement was not tendered, the references to it in the medical reports constitute evidence that a third witness to the events reported having gained much the same impressions of Mr Messruther's appearance as the Grahams.

Mr Sampson's evidence

1. Mr Gross submitted that the primary Judge failed to consider whether Mr Sampson's evidence could be reconciled with that of the Grahams. In a statement made to police on 4 November 2004, Mr Sampson did not say anything about his observations of the driver of the van as it travelled towards him and crossed the median strip. However, in his statement made in December 2013, Mr Sampson included this paragraph: "Although the accident was a long time ago, it was a very dramatic, and traumatic, event that I witnessed at that time. I still have a clear recollection of seeing the driver of the white van sitting up, with his hands on the wheel. He appeared to be driving the van. He was not slumped over the wheel, and appeared to be sitting upright in the position expected of a person driving a vehicle." This evidence was to some extent corroborated by an unsigned statement prepared in November 2005 by the appellant's solicitor on the basis of a telephone conversation with Mr Sampson.
2. In giving his reasons for rejecting the appellant's case, the primary Judge accepted that Mr Sampson had seen Mr Messruther apparently sitting behind the wheel in an upright position. [19] His Honour found that this observation was explained by two factors. First, Mr Messruther was restrained in the van by a seat belt. Secondly, it could be expected that the movement of the van over the hump of the median strip would create an upward force upon the driver of the van. The latter finding was based on Dr Gibson's evidence in cross-examination that it was possible for the limp body of an unconscious person in a motor vehicle to be flung upwards as the result of the force of the vehicle colliding with a median strip at high speed. [20]
3. The primary Judge also found that Mr Sampson's more detailed account given nine years after the events contained "a degree of entirely sincere reconstruction". His Honour clearly had in mind that Mr Sampson's unsigned 2005 statement referred to seeing Mr Messruther sitting up, but not to Mr Messruther holding the steering wheel. Moreover, Mr Sampson accepted that he first saw the van after it had struck the median strip. His evidence therefore did not address the period during which the Grahams observed the posture of the van driver and the course the van took.

The medical evidence

1. The appellant's principal complaint about the primary Judge's treatment of the medical evidence depends on the appellant making good his contention that the primary Judge should not have accepted the evidence of the Grahams. That evidence informed the assumptions made by the cardiologists that Mr Messruther had been seen slumped over and apparently limp as the van moved along the Highway. The attack on the primary Judge's acceptance of the Grahams' evidence having failed, their complaint about acceptance of the medical evidence must likewise fail.
2. The appellant's written submission rather faintly suggested that the primary Judge should not have relied on the cardiologists' joint report because it did not explain their reasoning process or assumptions. The joint report was admitted without objection, as were the reports prepared by each of the cardiologists individually. The cardiologists gave evidence in conclave, giving the appellant's senior counsel the opportunity to question them about their assumptions and the reasoning in their individual reports and the joint report. In those circumstances, it was clearly open to the primary Judge to accept the joint opinion of the cardiologists.

Negligence following heart attack

1. The very brief argument on behalf of the appellant directed to Ground 5 in the Amended Notice of Appeal recognised that it depended on whether the primary Judge erred in accepting the evidence of the Grahams. Since the challenge to his Honour's acceptance of their evidence has failed, Ground 5 must also fail.

Contours of the Highway and Dr Gibson

1. The primary Judge was invited by the parties to inspect the Highway and to make his own observations about the extent of the curve and the fall of the camber. Contrary to the appellant's submissions, his Honour was entitled to record his observations in the Primary Judgment. As it happens, his observations were supported by Mr Graham who said in his evidence that the camber in the material section of the Highway was "ever so slight".
2. Dr Gibson's report suffered from the difficulty that he was unable to obtain the dimensions of the camber. He accepted that the absence of that information made his report, insofar as it dealt with the contours and camber of the road "problematic".
3. His Honour gave cogent reasons for not accepting the opinion of Dr Gibson. In particular he found that Dr Gibson's view did not take sufficient account of the observations of the Grahams prior to the collision. His Honour also pointed out that Dr Gibson's field of expertise was biomedical engineering and that his opinion on whether Mr Messruther was conscious could not be "conclusive". If anything, this was an understatement as Dr Gibson acknowledged that he could not answer questions about the consequences of a cardiac arrest suffered by a driver of a vehicle.
4. A further difficulty with Dr Gibson's evidence is that, as he acknowledged, it was outside his field of expertise to express an opinion as to whether an arrhythmic event causes autonomic movement such as the clenching of fists on the steering wheel. The medical evidence indicated that an arrhythmic event could cause a movement of this kind and can also produce intervals of contraction and relaxation. Dr Gibson accepted in his cross-examination that if Mr Messruther was undergoing a heart attack and leaning in one direction while gripping the steering wheel, the vehicle would follow the alignment it had at that point.
5. The primary Judge did not err in finding Dr Gibson's opinion unpersuasive.

Orders

1. It is impossible not to feel sympathy for the appellant and his family. Nonetheless a careful review of the evidence does not disclose any error in the critical findings of fact made by the primary Judge. When regard is had to the opinions jointly expressed by the cardiologists and the absence of any attack on the honesty of the Grahams it is difficult to see how his Honour could have reached any conclusion other than that the appellant had not established that the collision was caused by Mr Messruther's negligence.
2. It follows that the appeal must be dismissed. Having regard to the orders made in the Tutor Judgment there would seem to be no practical utility in making an order that the appellant pay the respondent's costs of the appeal. Accordingly, the only order that should be made is as follows:
3. Extend the time for filing the notice of appeal until 2 October 2015.
4. Appeal dismissed.

Endnotes

1. Layton Smith by his tutor Troy Smith v NRMA Insurance Ltd [2014] NSWSC 1518 (Primary Judgment). The proceedings were brought in the Common Law Division on the appellant's behalf by his father, Mr Smith, as tutor. Mr Smith filed a Notice of Appeal on 2 October 2015 as tutor but subsequently obtained an order pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1)(b) that he be removed as tutor. Gleeson JA subsequently made orders that Ms Daley, an independent solicitor, be appointed as tutor for the appellant on terms protecting her from being personally liable for costs should the respondent obtain an order for costs: Smith v NRMA Insurance Ltd [2016] NSWCA 250 (Tutor Judgment).
2. Primary Judgment at [3].
3. MAC Act, Part 1.2 ("No-Fault Claims - Children and Blameless Accidents"), introduced by the Motor Accidents Compensation Amendment Act 2006 (NSW). Part 1.2 Div 2 ("No-Fault recovery by children") of the MAC Act applies to motor accidents occurring after the commencement of Div 2 (1 October 2006): see MAC Act, s 7J(5). See also Tutor Judgment at [6] (Gleeson JA).
4. Primary Judgment at [89].
5. Primary Judgment at [90]-[102].
6. Primary Judgment at [6]-[7].
7. Primary Judgment at [51].
8. Primary Judgment at [52].
9. Primary Judgment at [55].
10. Primary Judgment at [61]-[65].
11. Primary Judgment at [88].
12. Primary Judgment at [32]-[34], [40]-[44].
13. The statement was made by Mrs Graham in her maiden name, Ms Pipet.
14. Primary Judgment at [90].
15. Primary Judgment at [91]-[103].
16. Primary Judgment at [91].
17. Primary Judgment at [99].
18. Transcript at 185.
19. Primary Judgment at [98].
20. Primary Judgment at [68]. 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: 18 July 2017