Tiba v Transport Accident Commission [2025] VCC 416

1. This is a common law claim for damages arising from a motor vehicle collision. The existence, scope and content of a duty of care are issues to be decided.
2. The first issue for resolution is a factual dispute; was a passenger in a motor car assaulting the driver of that car shortly before a collision occurred?
3. Second, if the passenger was assaulting the driver, was a duty of care owed by the driver to the passenger?
4. Third, if a duty of care was owed where the passenger was assaulting the driver, what was the scope and content of the duty and was there breach?
5. Fourth, if there was no assault, is there sufficient evidence to conclude there was a breach of the duty of care owed, where the passenger has no memory of a collision, and the driver is dead?
6. Fifth, if the passenger was assaulting the driver, was there contributory negligence on the part of the passenger?
7. Sixth, if there was a breach of duty, the assessment of damages.

1. Omar Tiba ("the plaintiff") is now 35 years of age, married with two young children. He is the second youngest of seven siblings, born in Australia to parents who migrated from Lebanon.
2. The plaintiff attended school in Melbourne, and in Lebanon. Academically, he struggled at school. Most of his brothers have extensive criminal records, for offences involving drugs and violence. He was involved with the criminal justice system from a relatively young age, has a history of drug use and no documented work history.

1. On 26 May 2011, when he was 21 years of age, the plaintiff was driving a Toyota Sedan on the Western Ring Road, Tullamarine, at approximately 10.40 pm, when he was intercepted by a marked Police Highway Patrol Car driven by police officer Dennis Busic ("Busic") with another officer, Cameron Manniche ("Manniche") in the police car. The plaintiff was pulled over having earlier been detected on the Calder Freeway driving at about 150 kmph. He told police he was speeding because he was his father's carer and "really needed to get to him".[2]
2. After the Toyota was pulled over, the police established the identity of the plaintiff and that he had a suspended driver's licence because of accumulated demerit points.
3. The car driven by the plaintiff did not belong to him. He told police he had borrowed the car from a mate. In the notes made in his daybook, Busic recorded the owner as Hanedy Rabah.[3] The plaintiff said he had borrowed the car from an unnamed friend. A friend of his called to give 'before and after' evidence, Ahmed Elmahmoud ("Elmahmoud"), said the plaintiff had "borrowed my car for the night, from memory".[4] Because of the speed the plaintiff had been driving at, the Toyota was impounded.
4. The ownership of the Toyota provides a teaser for one of many loose threads and unresolved pieces of evidence in this proceeding.
5. The plaintiff had two other passengers in the Toyota. One was a man named Abdul El-Abed ("El-Abed"). The other was a man who curiously no one could name or was prepared to identify. That man's identity remains a mystery.
6. Because the Toyota was to be impounded, the plaintiff and his passengers were told by the police officers to arrange transport to get themselves off the Western Ring Road.
7. It seems that El-Abed then rang a man named Aaron Fryer ("Fryer"), aged 25, and asked Fryer to come collect them.
8. Fryer arrived at about 11.15 pm and was driving a maroon-coloured Holden Commodore ("the Commodore") that the police later identified as being owned by Jacqueline Fischer. Fryer had a front seat passenger with him, being a then sixteen (nearly seventeen) year old male named Jay Tennant ("Tennant"). Fryer parked 30 or 50 metres behind the Toyota, waited for the plaintiff and the other men to get in the car and then drove off.

1. The plaintiff was a rear seat passenger in the Commodore for an initial journey that concluded about 8 minutes later. By then Fryer had driven the Commodore in a southerly direction to a spot on Widford Street, Broadmeadows, when he stopped the car at a pedestrian crossing near the Olsen Place shops.
2. Much of the narrative so far is not really in dispute. But it is at this point of the story that things start to become less clear.
3. The plaintiff said that he had a memory of the car getting impounded,[5] of being picked up[6] and that the police stayed until he got picked up. He said his memory was "very hazy from there".[7]
4. The plaintiff claimed that he had not met Fryer in person before that day. He was challenged about that because in an affidavit sworn 9 March 2017, he said about Fryer that "Having only met him once, I did not know him and he was not a friend of mine".[8] The plaintiff explained that what he meant in the affidavit was that he had met Fryer once on the phone which was just "an introduction. He was with a friend and we all just met each other and that's it, yeah".[9]
5. The plaintiff's evidence about whether Fryer was a friend of his before the accident, or how he came to be introduced to him in a phone call, made little sense.
6. The plaintiff could not recall where he was seated in the Commodore, or if he had buckled up his seat belt. He said he did not know Tennant.[10]
7. Next, there was evidence in a statement from a witness, Paul Baade ("Baade"). [11] Baade had parked near the Olsen Place shops, got out of his car and a few meters away saw the Commodore parked at the pedestrian crossing. Baade said he saw four "Lebanese looking males" inside the Commodore and that "the males were all having a heated verbal argument. They were yelling and screaming in a foreign language".
8. Baade then went inside the shops to buy cigarettes. When he came out of the shops a few minutes later, he observed the Commodore "smashed up near the old police station building".
9. What happened in the few minutes between Baade going in and out of the shops and seeing the Commodore smashed up is a key issue for determination.

1. Soon after stopping at the pedestrian crossing, Fryer commenced a second journey, still driving the Commodore generally in a southerly direction. As I shall get to, by the time he commenced the second journey, the plaintiff was the only remaining passenger in the rear of the Commodore, although where he was seated and whether he was wearing a seatbelt are issues in dispute.
2. In any event, near the intersection of Freda Street, the Commodore became out of control and struck a pole ("the collision") before coming to rest on the Easterly side of the road.
3. There is evidence from an investigating police officer, Detective Sargeant Darren Williams ("Williams"), both in a written statement[12] and in oral evidence, that the distance from the pedestrian crossing to the point of the collision was approximately 83 metres and that the Commodore was travelling at a speed of at least 70 kmph when it hit the pole.
4. Using basic calculations, with which the parties agreed, it would have taken Fryer between 4-6 seconds to drive from the pedestrian crossing to hitting the pole.
5. Williams' evidence, which I accept, was that at the time of the Commodore hitting the pole, it had been travelling at a constant speed, there was no evidence of braking, but there were 'yaw marks' on the road that suggested it had entered an oversteer movement, not consistent with the vehicle attempting to turn left into the side street.[13] Williams said that the yaw mark was consistent with the application of steering to the left, but no objective evidence of any other steering input.[14]
6. The Commodore was extensively damaged especially to the righthand side, where it struck the pole. Sadly, Fryer died in the collision, and the plaintiff suffered physical injuries, including a head injury and a right hip injury.
7. The plaintiff said he had no memory of the collision.[15] Therefore, he could not give any direct evidence about what caused the collision. The defendant challenged the plaintiff about some of what he had said to health practitioners as to his memory of events, as part of a challenge to his credit. But for this proceeding it accepted that the plaintiff had no memory of the collision.

1. There is objective evidence that the Commodore was unregistered, fitted with stolen plates, and had four bald tyres. In addition, Fryer held only a Learner's Permit. Further, a post-mortem blood analysis taken approximately 5 1/2 hours after the collision, revealed that Fryer then had a high level of methamphetamine in his blood system.
2. According to Dr Morris Odell, retired forensic physician, Fryer "had the drug present at a fairly high level and even though there is no precise correlation between the effects and the levels of the drug, there is, for instance, for alcohol, it is likely that he would have been impaired by methylamphetamine at such a high level".[16]
3. This evidence of the condition of the car and the condition of Fryer, in combination, was relied upon by the plaintiff for the contention that Fryer had been negligent and breached the duty of care owed to him.

1. Although the plaintiff had no memory of the collision, the plaintiff had available direct evidence that he did not adduce. He did not call El-Abed to give evidence, despite El-Abed being available, as highlighted by an application to call El-Abed to give evidence by video link from a prison, after the plaintiff had closed his case, which was disallowed by me in a separate ruling. The defendant submitted that this was an unexplained failure by the plaintiff to call a witness that should lead the court to draw an adverse inference in accordance with the well-known principles in Jones v Dunkel.[17]
2. El-Abed was available, was a witness who was a friend of the plaintiff and in my view was in his camp. I consider that there was an unexplained failure by the plaintiff to call El-Abed that does enable an adverse inference to be drawn by that failure to call El-Abed.

1. Because Fryer died in the collision, the plaintiff brings this proceeding against the Transport Accident Commission ("the defendant") pursuant to section 96 of the Transport Accident Act 1986 ("the Act").
2. The defendant in an amended defence admits the happening of the collision. But as I shall come to, on a factual basis it denied that Fryer owed the plaintiff a duty of care. Alternatively, if Fryer owed a duty of care, the defendant alleged contributory negligence by the plaintiff.
3. As mentioned, based on the condition of both the Commodore and Fryer, the plaintiff submitted that the inference from the objective evidence was of some failure or mistake by the driver as the cause of the collision, such as to establish a breach of the duty of care owed.
4. In a colourful opening, the plaintiff's lead counsel said that "just before coming to court today, I was struck by the loss of understanding as to really why we are here"[18] and that the defendant's "confected comic book fantasy defence takes absurdity to a new level".[19] He said the known facts proved what undoubtably did contribute to the collision, being that Fryer was unlicenced, the car was unroadworthy, unregistered and fitted with stolen plates and whilst "profoundly affected by a large overdose of methamphetamine in his blood system which clearly would have adversely affected his driving".[20]
5. Ordinarily, the brief sketch of the facts outlined, might suggest that an inference could properly be drawn that Fryer failed to exercise reasonable care in the driving and management of the Commodore, as alleged by the plaintiff. As Williams said, there was a steering input to the left, but not to take the corner, at a time when the Commodore was accelerating, to a speed greater than the advisory speed limit.
6. But, as said at the outset, this proceeding was not ordinary.
7. First, it need be remembered that save for the issue of contributory negligence, it is the plaintiff who bears the overall onus and not the defendant.
8. Second, the resolution of this proceeding required an analysis of a body evidence much of which was incomplete or unreliable.
9. These points were highlighted by senior counsel for the defendant in opening address, who said that the defendant had a very different version of events of how the accident occurred, the onus was on the plaintiff to prove the case and that there would be a contest as to the evidence that was properly admissible.[21]
10. Third, as a broad comment, because of the state of the evidence, there are many loose threads that cannot be resolved. The oral evidence of most, if not all the lay witnesses was tainted by unreliability.
11. Fourth, in its defence, the defendant denied that Fryer had been negligent, but also pleaded as a complete defence to the proceeding, its contention that there was no duty of care owed by Fryer to the plaintiff.
12. The defendant alleged that at the time Fryer commenced the second journey he was being assaulted by being punched to the head by the plaintiff. Therefore, it said that there was no duty of care owed.
13. In support of the assertion that the plaintiff was assaulting Fryer, the defendant relied on the evidence from Tennant, who attended court and gave oral evidence.
14. Specifically, in the further amended defence, the defendant pleaded that:
    1. The Defendant says further that shortly or immediately prior to the collision the Plaintiff was assaulting the deceased by punching him to the head and upper body.
    2. By reason of the matters set out in paragraph 8 the Plaintiff well knew, or should have known, that:

a. there was a risk of the deceased losing control of the vehicle and causing injury.;

b. there was no reliance, actual or reasonable, by the Plaintiff on the deceased to avoid injuring him in the driving of the vehicle;

c. the deceased was vulnerable to the Plaintiff's assault;

d. the deceased, in a condition of being assaulted and punched by the Plaintiff, was not in a position of control of his motor vehicle.

10. As a consequence of the matters alleged in the preceding paragraphs:

a) the Plaintiff agreed to accept the risk that the deceased could lose control of the vehicle and voluntarily encountered and accepted the risk of sustaining personal injury, loss and damages; and/or

b) the deceased did not owe the Plaintiff a duty of care at the time of the collision.

11. Further, and in the alternative, if there was any duty of care owed by the deceased to the Plaintiff (which is denied) and if the deceased was guilty of any breach of such duty (which is also denied), the Plaintiff was guilty of contributory negligence.

(a) failing to take any or any reasonable care for his own safety;

(b) assaulting the deceased by punching him to the head and upper body;

(c) acting in a manner that prevented the deceased from exercising any or any proper control over the motor vehicle.

1. It is the plaintiff who has the burden of proof, based on the civil standard of 'the balance of probabilities', to establish that there was negligence or breach of duty by Fryer that was a cause of his injury, loss and damage.
2. Because the plaintiff could not recall the collision and did not call El-Abed, he relied on other evidence and the drawing of inferences, for the contention that he had established a breach of the duty owed and an entitlement to recover damages from the defendant.
3. The legal principles for a claim based upon inferential reasoning are not in dispute. The High Court of Australia in Bradshaw v McEwans Pty Ltd[22] stated:

"The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture."

1. In Masters Home Improvement Australia Pty Ltd v North East Solution Pty Ltd[23] The Court of Appeal said about drawing inferences in civil cases that:

"The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be 'the more probable inference' from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force."

1. Endorsing what was said in Masters, in Munday v St Vincent's Hospital[24] the Court of Appeal again summarised the principles relating to the drawing of conclusions or inferences from established facts. As the Court said, in short, the inference must be based on evidence, it must be the product of logical deduction rather than speculation, and the party that seeks to establish the inference must demonstrate that the inference is the more probable conclusion to be drawn from the proven facts.
2. In accordance with those principles, I consider that absent direct or other relevant evidence, it could validly be inferred by logical deduction that there was negligence by Fryer that was a cause of the collision because at the time of the collision Fryer-

(i) would have been impaired for decision making because of the quantity of illicit drugs in his blood system;

(ii) was driving an unroadworthy and unsafe vehicle;

(iii) was a Learner Driver driving without appropriate supervision;

(iv) was driving at a speed greater than the posted advisory speed limit;

(v) made no effort to slow down or brake so as to avoid the collision;

(vi) had made a steering input, not being an attempt to take a corner, that had caused the vehicle to go into an uncontrollable oversteer.

1. But in drawing inferences I must consider all the evidence - the direct proof that is available - including such evidence from Tennant that I accept, before deciding if the inferences from the established facts in the preceding paragraph are enough for a conclusion that Fryer was negligent and breached a duty of care owed to the plaintiff.
2. As a general overview, the evidence of Tennant included the allegation that shortly before the collision the plaintiff was punching Fryer to the head, while they were stopped at the pedestrian crossing. Tennant said the assault spread to him and he fled the car and was chased by the other two rear seat passengers. He said he saw the plaintiff continuing to assault Fryer as the Commodore commenced the second journey.
3. The defendant relied on the evidence of Tennant for the contention that there was no duty of care owed, or no breach of any duty owed.
4. Tennant is a direct witness to much of the relevant events. The conclusions about his evidence are relevant for a consideration of the whole of the evidence and whether inferences drawn from the other evidence are more probable or not. If I was to reject Tennant's evidence, then inferential reasoning might be enough for the plaintiff to succeed. But, if I accept Tennant's evidence, then that evidence must be considered in combination with the other evidence for the result.

1. It is convenient next to set out the remaining evidence of the collision, commencing with the plaintiff's evidence.

1. The plaintiff was born in the northern suburbs of Melbourne in 1989. His parents migrated from Lebanon before he was born. He is the second youngest of seven children, with four older brothers.
2. The plaintiff attended primary and secondary schools in the northern suburbs of Melbourne, largely in and around the Broadmeadows area. He spent some time moving between Melbourne and Lebanon with his family, including for several years in his early teenage years, where he attended school for periods.
3. The plaintiff finished his schooling at age 18 in Melbourne, having failed year 10 and probably having dropped out part-way through VCAL course in year 11.
4. At a time when he had pending criminal charges, the plaintiff was assessed by Dr Amanda Neilson, psychologist.[25] In a report dated 22 March 2015,[26] Dr Neilson said the plaintiff's premorbid intellectual skills were estimated to fall into the extremely low range overall.
5. The plaintiff has a poor work record. He may have worked for a period around age 18 as a security guard and from time to time as an unskilled labourer for his eldest brother, who had a shop fitting business.
6. Dr Neilson also recorded that the plaintiff's work history ended after the work with his brother because "the drugs got in the way". In her oral evidence, Dr Neilson confirmed that information would have been acquired by her from the plaintiff during her interview with him.[27]
7. By about age 19 or 20, the plaintiff was apparently receiving a Commonwealth Government carers pension for care he says he was providing to his mother, because of her health issues. There is no evidence of any attempt at paid employment since then; in fact, there is no objective evidence of any paid employment at all. The work with his brother may have ended by the time he became his mother's carer.
8. The plaintiff described early in his evidence how all his brothers, apart from his eldest brother (the shop fitter) had criminal histories, that included offending related to drugs and violence. He described one brother as recently having been locked up, and another as having spent more time in prison than at home.[28] At one point the plaintiff and some of his family fled to the safety of Lebanon because of a war between his brothers and some other group that resulted in the family home being shot and firebombed.
9. The plaintiff had a criminal history before the collision that involved driving offences and offences involving violence. He had pleaded guilty to charges of 'affray' that apparently arose out of conflict between his brothers and another group of men at a shopping centre, although he sought to play down how he came to be caught up in that.
10. The plaintiff said he was "smoking weed" after he left school and tried the drug 'ICE' on maybe 3 or 4 occasions but not finding it to his taste. He otherwise denied any serious drug issues or criminality. He described how before the collision he could keep his brothers at bay and resist their overtures.
11. But in cross-examination, he quickly resiled from his evidence in chief, and acknowledged an extensive history of drug use before the collision. He agreed that he had been a regular user of the drug ICE before the accident.[29]
12. The plaintiff agreed that his older brothers engaged in heavy drug use, and it was they who introduced him to illicit drugs.[30] He maintained that his drug use escalated after the collision.[31]
13. He said that he had been a good student and had done well at school. But he also retreated from that position during cross-examination. It became clear in his oral evidence that the plaintiff had minimised his evidence of drug use before the collision, exaggerated his academic and work history, overstated his time in hospital after the collision, and had minimised or played down other traumatic events in his life, such as when he was shot in the legs and subsequently carried out a revenge shooting, for which he was convicted and served over six years in jail.
14. In short, the plaintiff was demonstrably an unreliable witness. I do not accept his evidence that he was a solid citizen before the collision, who caved in to pressure and assumed a life of crime after the collision, because the extent of his injuries meant he could not resist the pull of his brothers towards a life of drugs and violence.
15. But perhaps not much turns on his reliability. Despite some of the history in medical records and in medical reports that hinted at a better recall of the events about the night of the collision, on the key issue he has maintained a denial of any memory of how the collision happened. In fairness to him, he did suffer an obvious head injury that may explain his poor recall of events.
16. But his head injury cannot explain his general unreliability as a witness.
17. It is incredulous that the plaintiff could not identify the third person in the Toyota when it was impounded. He gave evidence that he had discussed the collision with El-Abed when El-Abed visited him in hospital.[32] He said he could not remember the subject of the conversation. It would be astonishing if they did not discuss the events of the night of the collision, yet the plaintiff, despite saying that he now had a knowledge of some events from second hand sources, said nothing at all about what he discussed with El-Abed at hospital.
18. The unreliability of the plaintiff also impacts how the task of assessing damages would be approached, if the Court was to get to that stage. This became clear in closing submission when, no doubt because of the state of the evidence (or lack of it), he abandoned any claim for past pecuniary loss and all but abandoned any claim for future loss of earning capacity, save for the submission that he was entitled to something to reflect a loss of capacity for employment.

1. By agreement, typed statements made by Baade (adopting handwritten statements made on 27 May 2011) in April 2014 were tendered into evidence.[33] Baade said

"My name is Paul BAADE and my address is known to police.

On 26th May 2011 at approximately 11.13pm, I got out of my car ® QDS 248, which is a blue Ford Laser at the Widford Street Broadmeadows shops when I saw four males inside of a dark blue Commodore sitting at the traffic lights right outside of the shops about 2 metres away from me.

The four males I would describe as being approximately late 20's in age and they all looked skinny. They all looked lebanese or something like that.

The males were all having a heated verbal agreement. They were yelling and screaming in a foreign language sounding like lebanese of something like that.

I went into the Milk Bar which was about 4 car lengths away to buy cigarettes when about 23 minutes later so approximately 11.15pm I heard nothing from the Commodroe direction but as soon as I walked outside of the Milk Bar and turned in the direction of Freda Street, I saw the same Commodore from earlier now smashed up against the old police station building.

I walked down towards the Commodore where there was already approximately 3 males and 1 female at the car. I helped pull out a male from the driver front side of the car. There was already one male attempting to pull him out. The car occupant"[34]

"My full name is Paul BAADE, my address details are known to police investigating this matter.

I have previously provided police with a statement regarding this matter on the 26/05/2011 to a police officer by the name of Catherine KENNY, and this is a supplementary statement regarding this matter.

On the night of the incident, I had a lot on my mind due to personal matters I was dealing with at the time. In my previous statement provided to police, I recall stating that the car was blue, however after further thought I remembered that the car was red.

At approximately 11:13 pm on the 26th of May 2011, I was at the Ohlsen Place shops in Widford Street Broadmeadows, I had just got out of my car which is a Blue Ford Laser Victorian Registration number (QDS 248). As I was locking my car I heard a car screech at the pedestrian. crossing. I looked over at the car and I noticed the car stopped on the crossing. It was a red coloured car, not sure what make or model.

I noticed the passenger in the front get out of the car yelling and screaming, and also two passengers from the back of the car got out yelling and screaming. They looked to be all males, young, guessing about 18 year old onwards. The driver remained in the car . I didn't see him get out.

I was about 5-6 car lengths away from the males, I saw the two passenger side doors of the car still open and the car was facing south. I walked into the Milk Bar because I thought they were going to rob me. The males all looked dark, Lebanese or something, the front passenger I remember was tall and skinny, I can't remember what they were wearing.

I stayed in the Milk Bar for about 2-3 minutes buying cigarettes. As I was leaving the Milk Bar I heard a loud bang. I walked around the corner and saw a car on the footpath on the comer of Widford Street and the intersecting Street of where the old Broadmeadows Police Station used to be. I can't remember the actual name of the street.

I put my cigarettes in my car and made my way to the car which was on the footpath.

When I got there I noticed it was a red car that had slammed into a wooden pole on the passenger side. There was only myself and another man there at the time trying to help. The male asked me to help him. I

I noticed only two people in the car, they were both males of dark complexion.

The male in the passenger front side was moaning and groaning. I helped remove the male which was closest to the drivers door of the vehicle. I remember the male I helped remove from the car yelling and screaming about his back as we removed him from the drivers window area of the car. I helped by holding his legs as we placed him on the grass beside the car.

At the time my body couldn't handle being there for any longer and I crossed the road. I noticed a lot more people gathering and I waited there until I was spoken to by police."[35]

1. At the pedestrian crossing, Baade saw a heated argument inside the Commodore, that made him fear for his own safety, but he did not see the plaintiff assault the driver of the Commodore. He also saw several men outside the car. Whatever was happening at the pedestrian crossing, it was clearly a dispute amongst the occupants of the Commodore, and not just a pleasant trip home to be dropped off.

1. Willams was called by the plaintiff to give evidence in his capacity as a police collision response supervisor, who attended the scene of the collision and made observations, that were subsequently included in a police incident report.
2. Much of Williams' relevant evidence has already been set out, namely his observations of yaw marks made by the Commodore, the estimate of speed and the movement of the Commodore during the second journey.
3. But as an overview, he said in cross-examination that:

Q: "And as I understand your description of the yaw mark, it was likely not left as a result of acceleration but a constant speed yaw mark is how you have described it, I think - - -?---

A: Yes.

Q: - - - is that right?---

A: Yes.

Q: And it didn't seem to be consistent with, can I suggest to you, the vehicle attempting to do a left turn into that street?---

A: No.

Q: No. It was the vehicle travelling straight but yawing for whatever reason it was yawing but it was yawing and then colliding with the pole, running onto the nature strip a little further south?---

A: So what happens is when you oversteer, the car starts to rotate around because you have that steering input which it's not used to, so it's then going to start to rotate and in this instance it started rotating leading the driver's side, so anticlockwise.

Q: And that's how it comes to, as it were, nose into the left - - -?---

A: Correct.

Q: - - - as it's travelling south?---

A: Yes.

Q: And that would be consistent with some input on the steering wheel, would it not?---

A: Yes, correct.

Q: So you have discounted acceleration because that's not consistent with the yaw mark?---

A: Correct.

Q: The yaw mark is consistent with an application of steering?---

A: Yes.

Q: And that application of steering would be steering to the left?---

A: Correct.

Q: Right. Because the yaw mark, I think you described, is, in all probability, left by the off‑side rear wheel?---

A: Correct, because when you oversteer, all the weight of the car is then transposed - - -

Q: Transferred onto that wheel?---

A: Yes.

Q: And you detected no braking or skid marks prior to the collision?---

A: No.

Q: So aside from the initial yaw mark which sends the vehicle on its trajectory, from your observation of the physical scene there didn't appear to be any other attempt to avoid the collision? No application of brakes was obvious?---

A: No.

Q: No other steering input?---

A: No.

Q: A reverse steering input, for example? I mean, ordinarily if the tail of a vehicle moves out and you're oversteering, you counter steer to correct the oversteer?---

A: Yes, you can try. Most of the time we find that once they start to rotate, there's no coming back from it.

Q: Right. And it certainly didn't come back in this case?---

A: No.

Q: And there was simply no obvious explanation for what had happened, other than there had been some input on the steering wheel for reasons otherwise unexplained?---

A: Correct."[36]

1. Busic was called by the defendant to give evidence of his recall of events. A statement made by him on 2 November 2012 was tendered[37] as well as his handwritten day notes.[38]
2. Busic gave evidence of how he came to intercept the Toyota, a discussion with the plaintiff after being pulled over and then the arrival of the Commodore to collect the plaintiff and his other passengers. He said the intercept occurred at about 10.40 pm, the Commodore attended and collected the plaintiff at about 11.15 pm. He and Manniche then waited for a tow truck to arrive to collect the Toyota, during which time they received radio notification of the collision and then attended the scene of the collision at 11.56 pm.
3. By reference to his daybook, Busic said that after the collision he made a note to notify the Santiago Task force, who investigated Middle East organised crime.[39] Later in re-examination he explained that he thought the Santiago taskforce should be notified because he understood both El-Abed and the plaintiff to be "quite involved in organised crime and there was a deceased person involved".
4. Much of Busic's evidence was about the events leading up to the Toyota being impounded and of what he observed up to the time Fryer arrived and then drove off.
5. Regarding Tennant, Busic said he didn't recall speaking to Tennant at all.[40] He did not know who Tennant was at the time he attended the accident scene and the potential involvement of Tennant was something he was made aware of later on.
6. Busic said he was aware that Detective Sycz was subsequently involved in the investigation. He had no recall of being present when Sycz spoke to Tennant.

1. Manniche was also in the police highway patrol car when the Toyota was intercepted. He also attended the scene of the collision. Later, he had some involvement in extracting a statement from Tennant.
2. Manniche was called by the defendant and gave evidence of his recall of events.
3. Manniche made a statement on 23 June 2014, and by agreement between the parties a redacted version of that statement was tendered.[41]
4. Consistent with what he said in his statement, Manniche gave evidence of the events leading up to the intercept of the Toyota and of his recall of events before the collision. Manniche confirmed he was sitting in the police car when the call came over the radio about 5 males involved in a brawl at Olsen Place.[42] He then confirmed that 2 minutes later another call came over the radio to attend a collision in Widford Place Broadmeadows.[43]
5. Next, Manniche described his attendance at the scene of the collision, and involvement in setting up a crime scene and cordoning off the area.
6. In his statement, Manniche described how he also took a statement from El-Abed, who apparently claimed to have been at home in bed at the time of the collision.
7. Turning to Tennant, Manniche described how he had been at the Broadmeadows train station with Sycz and Busic when there was a discussion with Tennant. His evidence about that was contained in his statement. Overall, so far as Manniche now had a memory of events, he said it was a pretty hectic night with a lot going on.[44]
8. In cross-examination, Manniche confirmed he was the informant for the preparation of a coronial inquest brief into the death of Fryer. As such, he had been directed to approach Tennant for a statement.[45]
9. About the discussion at the train station with Tennant, Manniche said the primary person for that conversation was Sycz, because he "had a really good rapport with Jay Tennant".[46]
10. Dealing with the scene of the collision, Manniche said that when he attended it had been raining earlier, and the road was wet.[47] He walked the road and made observations but because of the fact it was at night and the road was wet, not much could be seen. He said a site inspection was conducted the next morning, and he observed the yaw marks on the road, but no other road markings related to the collision.[48]
11. Manniche identified that the Commodore had stolen number plates. He inspected the damage to the commodore on the night of the collision. He observed that the tyres on the Commodore had little or no tread".[49] Manniche subsequently learnt that Fryer was not fully licenced and that the results of blood samples taken from Fryer indicated the presence of methamphetamine.
12. The cross-examination returned to the conversation with Tennant at the Broadmeadows Railway Station on 14 September 2011. After repeating how and why that occurred, the cross-examiner then confirmed with Manniche that the purpose was to get a statement and that at that time Tennant seemed concerned he was to be spoken to about other matters.
13. Manniche agreed that there was an explanation provided by Tennant during the conversation at the train station as to how the collision happened.[50] It was suggested by leading counsel for the plaintiff that during that conversation he had a belief that Tennant was lying about what had happened. Manniche was taken to his statement:

Q: "'He won't, guarantee it. Ask him if he'll make a written statement but I doubt it. I'll just play it by ear.' So there was a concern then at that time, I suggest, that Tennant may or may not provide you with the statement that you needed?---

A: Yes, that's correct.

Q: Right. And then, the following comment is, 'I reckon he's lying.' Have you got that?---

A: Yep.

Q: 'He's confirmed what - because it was him for sure, when now' - - -

MR BLANDEN:

Q: Your Honour, my learned friend skipped over the 'indistinct' again.

HIS HONOUR:

Q: Well, I wanted to ask that. Acting Sergeant, do you know is that indistinct or has this been redacted where the '...' is? Because at other stages, 'indistinct' is - - -?---

A: No. That's just - I think that's just when they do the transcript where they can't make out what's been said."[51]

1. It was repeated to Manniche that he still had no belief in the honesty of Tennant, and that he had formed the impression that Tennant was prepared to give a statement to "stitch somebody up". He said:

"At that stage, we still hadn't got all the details of what had actually happened."[52]

1. It was suggested to Manniche that Tennant said he would provide a statement but would need something in return, and Manniche said, "Well, that's what appears, yes."[53]
2. Returning to the Coroner's investigation, Manniche agreed that it was important to him that the materials to be provided at the coronial inquest were as accurate and informative as possible.[54]
3. Then, in a rolled-up way, lead counsel for the plaintiff asked Manniche:

Q: "As a result of - Mr Manniche, as a result of the investigations which you undertook - I'm talking about all the investigations that you undertook throughout the course of exploring the circumstances of this accident - were you able to identify whether there were any - whether the allegations of a fight taking place in the vehicle prior to the collision caused the collision?

A: Not a hundred per cent, no. No."[55]

1. In re-examination, Manniche was asked whether he expressed a view about the cause of the collision in his statement. At that point, I interrupted the oral evidence to note that he had in fact provided such an opinion in his statement. It is perhaps therefore convenient to simply set out what he said relevant to these issues in the statement, as follows:

"On the 14th of September 2011, I attended the Broadmeadows Railway Station where I spoke with a witness Jay TENNANT in the presence and hearing of Detective Senior Constable SYCZ and Senior Constable BUSIC. TENNANT was an occupant of the vehicle just prior to the collision and he told police that he was in the vehicle when FRYER collected TIBA, ELABAD and another unknown male from the earlier impound on the Western Ring Road Tullamarine. He explained they drove straight from the impound to Widford Street along the Western Ring Road. They then turned left into Pascoe Vale Road and right into Camp Road and the right into Widford Street where there was an altercation with the occupants of the vehicle at the Olsen Place shops. TENNANT got out of the vehicle with 2 other males who were seated in the rear and he observed the rear passenger Omar TIBA leaning across from the rear seat and striking FRYER to the head as FRYER accelerated away. TENNANT observed these actions by TIBA as he was standing at the passenger side front of the vehicle and had a clear view through the front windscreen. Prior to the collision TENNANT was seated in the front passenger seat and TENNANT held a current learners permit to drive in Victoria number 35294995. I obtained his details and a statement was taken by another police member on the 27th of September 2011.

After investigating this incident and gaining an insight into the nature of the collision I am of the opinion that:

The collision was the result of an alleged altercation which occurred between the rear seat passenger Omar TIBA and the deceased as he drove south on Widford Street and the fact that FRYER had Amphetamines in his blood which may have impaired his driving. In my opinion the deceased lost control of his vehicle, causing him to strike the power pole on the driver's side of the vehicle. This in turn caused the deceased's head to be forced out of the open driver's side window, his head impacting with the power pole causing major head trauma."[56]

1. And now we get to the critical evidence from Tennant. Apart from Baade, Tennant is really the only 'eyewitness'.
2. To start, I consider that some of Tennant's evidence was unreliable and a fabrication.
3. For example, Tennant's evidence about why a 16-year-old student would be asked to install a car stereo at about 10.30 pm at night lacked credibility, especially as he was at pains to playdown the extent of any friendship with Fryer. His evidence that he knew where Fryer lived, had been outside Fryer's house on previous occasions but that he had never been inside, lacked credibility.[57] He gave no credible explanation why someone he did not really know would get him out of bed to install a car stereo, or where or how the car stereo was to be installed.
4. Tennant's unreliability may be explained by a variety of reasons, such as his age at the time of the collision, the passage of time, his background and reluctance to be involved in the subsequent police investigation. It may also be explained because of reasons he has kept to himself about exactly what he and Fryer were up to on the night of the collision.
5. In that context, in an understatement, Tennant was also a very unsophisticated witness, who lacked an appreciation of the formality of a court hearing. His unsophistication also impacted some of his oral evidence.
6. His unsophistication was revealed early in cross-examination. When it was suggested to him that he did not know how he first met Fryer he said, "With a 'hello', I'm sure".[58]
7. Slightly out of order, later in cross-examination there was then an exchange about the car stereo as follows:

Q: "How often did you associate with Aaron? Was it on a daily, weekly or monthly basis?---

A: It was - that time I went to do the car stereo was the one time that I'd actually one-on-one associated with him.

Q: You told the police that you had in fact been with Aaron to fix a CD player. A CD player is something different than a car stereo, isn't it?---

A: No, they're exactly the same thing. Is that a trick question, a CD player and a car stereo?

Q: You say that a CD player is different than a car stereo; is that right?---

Q: I'm asking you the question. Are you saying in your evidence that a CD player is something different, in your mind - - -

A: A CD player and a car stereo is the exact same thing. The speakers that amplify the sound off of a stereo, a CD player or a radio, that is a total different thing again.

A: I'm talking about the stereo, the CD player, not the speakers and whatever you're - - -

Q: - - - you went to fix the speakers and not a CD player?---

Q: Your evidence before is that you were there to fix some speakers.

- - - and have a look at your stuff again quickly because I thought you were being a bit weird, trying to catch me out on something. I don't know what you're saying or doing, but they're both the exact same - - -

He said he was - sorry, Mr Tennant, just pause for a moment.

Q: Had you ever seen Aaron drive a car other than the Holden that you were in that night?---

Q: And why would Aaron be - at 10.30 at night he's asking you to come and help him fix a CD player?---

A: Because his car didn't have a stereo and he obviously wanted to listen to music when he was driving around or doing whatever he's doing. I don't know. You'd have to try and ask him. I mean, I don't know."[59]

1. When asked to recall if the Commodore was facing South when stopped at the pedestrian crossing, Tennant gave a pithy reply that "Fuck I don't know. Little schematic shit ain't going to matter - sorry".[60]
2. Broadly, Tennant has had four opportunities to tell his story.
3. The first opportunity was on 16 June 2011 when police telephoned him and asked Tennant to speak to them.
4. The second opportunity was on 14 September 2011 when police located Tennant at the Broadmeadows Railway Station and attempted to take a statement from him. The transcript of that meeting was tendered[61] and was the basis for much of the cross-examination.
5. The third opportunity was on 27 September 2011 when Tennant made a formal statement[62] ("Tennant's statement").
6. The fourth opportunity was on 5 February 2025 when Tennant attended court and gave oral evidence.
7. In the context of a very unsophisticated witness, it is easy to highlight what he said, or did not say, at different times, when asked about events the night of the collision.
8. In his oral evidence he described his recollection of events. He was robustly and appropriately challenged in cross-examination about what he said to police on the first and second opportunities he had to speak to them. Because of the cross-examination, the plaintiff was compelled to tender Tennant's statement.
9. The easiest way to consider Tennant's evidence is by setting out his oral evidence, because during that evidence there was cross-examination about the first two occasions Police tried to take a statement from him, as well as how he made the statement and what was in it. Because the defence effectively stands or falls based on Tennant's evidence, it is necessary to set it out in detail.
10. But as I shall explain, despite unconvincing parts of his evidence, about the events of the night of 26 May 2011, Tennant generally gave a consistent account of relevant events.

1. Tennant's evidence commenced with him being asked if Fryer was a friend of his before the collision, to which he said he was.[63] He was aware Fryer was killed and after the collision he spoke to the police on several occasions about the events of that night. Those discussions included a phone conversation and then another conversation at the Broadmeadows Railway Station, before he made the written statement.
2. Tennant was asked what his memory was now of what occurred back on 26 May 2011. He said he was at home in bed when he received a phone call from Fryer to install a car stereo because he did electrical stuff. He said Fryer came around to pick him up and they started heading towards his place. He said Fryer "did his own thing" and that he was "just installing the car stereo in the car", when Fryer received a phone call from someone.[64] Fryer then said he had to go and pick someone up and he went with him.
3. Next, Tennant described how Fryer pulled up behind some police officers and three people got into the Commodore. He only knew one person in the Commodore, who he described as "Abs" (which was clearly a reference to El-Abed), who was one of Fryer's associates.[65] He was then asked what happened after they picked the three men up. He said:

A: We left. We started heading back towards our area, Broadmeadows. He asked where they wanted to go. They mentioned they wanted to go to - just to the shops or something. They referenced - I don't know where. Anyway. Sorry. They said they wanted to go somewhere and then they asked for Aaron to drop me off and then he asked them why and then they said they wanted him to do stuff with them and then he said, 'Nah, he's installing my car stereo.' So they said, 'Just pull up here', at 4 Olsen Place shops, and we pulled up to Olsen Place shops.

Q: Right. Let me just stop you there for a second. Olsen Place shops are in Widford Road; is that right?---

Q: And there's a pedestrian crossing near the shops, across Widford Road. Are you able to tell His Honour where in relation to that pedestrian crossing the vehicle pulled up?---

A: Yeah, just before the pedestrian crossing."[66]

1. Next, Tennant was asked what happened after the Commodore pulled up at the pedestrian crossing. He said:

A: As soon as we pulled up, the person sitting behind me - I didn't know him at the time.

A: Jumped over and started hitting my mate, Aaron, and then I stepped out of the vehicle because - I stepped out of the vehicle and then two others - the two passenger people jumped out and ran around me and then as that happened, as they got out, Aaron slapped it in drive - he had his foot flat on the accelerator already and the car was valve bouncing - and then slapped it in drive. As soon as they got out, he took off, so I took off running through the middle of Olsen Place shops and the other two started chasing me and then they stopped chasing me and went back - I didn't know why - and I just kept running and ran and called me brother to come pick me up.

Q: All right. When the car drove off, who was still in the car at that stage?---

Q: And was anything happening in the car that you could observe?---

A: Yeah, he was getting - Aaron was getting assaulted.

Q: And what was your last vision of the car. Had it moved off from the stationary position?---

A: Yeah, it was spinning wheels and taking off and when I seen that happen, I thought I best run.

Q: Okay. And then you only became aware after the fact that there'd been an accident?---

A: I became aware, honestly, because I called my brother to come pick me up and I said I was at Olsen Place shops, so he drove past me and went to Olsen Place shops and seen all the lights and the commotion and thought it was me and then he went to take off home and then seen me on the side of the road and got me.

A: And then he told me there's - whatever. And I went home.

Q: In terms of the two people in the car, are you able to tell His Honour whether the person who started punching the driver, was that the same person who was in the car when it left, when it drove off?---

Q: And had that person tried to get out of the car before or they'd stayed in the car the whole time?

A: I'm not too sure. I do remember him stepping out for a second and saying something to me and then he got back and that's - it all happened so quick. It was like when - yeah. The door did open, he did say something to me and then at the same time that's when Aaron slammed it in drive and went to take off, so he dived back in the car and I just ran off.

Q: Right. And as to other details, have you got any memory of any other details as to the evening?---

A: No, I just remember what happened."[67]

1. Tennant confirmed he was sixteen years of age and was living with his parents in Coolaroo at the date of the collision. He thought he was a student at Batman TAFE at the time, studying a certificate as an auto electrician.
2. Tennant was cross-examined about how he knew Fryer. I consider he attempted falsely to give the impression that Fryer was more of an acquaintance, rather than a friend. Questions were put to him about whether he had ever seen Fryer sell drugs, been with him when selling drugs, or used drugs supplied by Fryer, all being allegations that he denied.[68]
3. It was when Tennant asked why he was with Fryer on the night of the collision, that led to the exchange about the car stereo. That set the scene for much of Tennant's approach to answering questions during cross examination.
4. Next, Tennant was crossed-examined about a phone call from police officer Daniel Sycz ("Sycz") nineteen days after the collision. He said he did not really remember that conversation.[69] It was put to him that Sycz had made a recording of the conversation and that revealed his reluctance to make a statement. Tennant said he did not recall the conversation because "I was just blunt with them".[70]
5. It was highlighted to Tennant that Sycz put him in the car with Tiba when it was impounded. He said "No, no I wasn't". He asked whether he recalled that and he said "No, but it sounds as stupid as it - - -".[71]
6. Pausing, in a case where much is unclear, Tennant was clearly not in the Toyota when Tiba was pulled over by police. That misunderstanding by Sycz may explain why that initial phone call with Tennant, proved to be unproductive.
7. Eventually, the cross-examination turned to suggest that Syzc invited Tennant to tell his side of the story. Tennant said he could not recall telling police they were just driving around that night or that they went to pick people up.[72]
8. It was then suggested to Tennant that he told Sycz that during the initial journey Fryer asked where the other men wanted to go, whether they wanted the car and then they were mucking around. Tennant repeated he did not recall the conversation. He was asked what he would have meant by "mucking around" and he said, as a sixteen year old, that probably would have been playing in the street doing something fun.[73]
9. It was suggested that he told Sycz that they yelled "just stop at the shops" and that he told Sycz that as the Commodore pulled up at the pedestrian crossing they went to jump out and one jumped over the front and started fighting. He repeated that he did not recall that conversation with Sycz.[74]
10. Regarding the phone call with Sycz, it was put as follows:

Q: "I'll move on further in the conversation. Sycz says, ;'Yep. Then' - this is on p6, Your Honour - 'Then you've driven back down towards Olsen Place and they've - Aaron has asked, 'Where do you want to be dropped off' And you answer, 'Yep.' 'And then Aaron pulls over and then - so which one has jumped in? Did he try to start fighting with you or start fighting with Aaron?' 'Just both of us and then Aaron got hit and I got hit and I got out of the car and legged it'?---

Q: You don't recall telling the police officer that you got out of the car and legged it?---

Q: So if you said to somebody you were legging it, what would that mean to you?---

Q: So you got out of the car and started running. That's the implication of that statement; is that correct?---

A: I don't recall having this conversation with this officer.

Q: But if you had the conversation with him and you told him that you got out of the car and legged it - - -"[75]

Q: "And then Sycz goes, 'Okay. All right. So then, did you hear the take-off or anything?' Tennant, 'Yeah, then Aaron took off and then I didn't know nothing. I just - well, I didn't hear nothing and see nothing.' In other words, you told him you get out of the car, you legged it, you didn't hear nothing, you didn't see nothing. That's what you told the police days after the incident?---

Q: Then you were asked, 'Omar was one that was in the car crash.' Tennant, 'I didn't even know who they were. I didn't - nothing.' Okay. Do you know them or do you know - - -?' 'Nup, nup. Not really, no.' 'You don't know them?' You don't recall saying that?---

A: I do not recall having this phone conversation with this officer."[76]

1. Next, Tennant was asked questions about a conversation he had with three police officers at the Broadmeadows Railway Station. He said he could recall having that taking place.[77]
2. Tennant was asked if he had some concerns because there were other current matters concerning police and offending, and said he could not recall that. It was suggested that police were concerned about getting a statement from him and their purpose was to invite him to make a statement, to which Tennant said "Correct".[78]
3. Broadly during the cross-examination about what happened at the train station, Tennant emphasised that he was trying to dodge having to make a statement.[79] Eventually when asked whether he recalled anything from the conversation at the train station, Tennant said "Nope".[80]
4. When asked if he knew Abs (El-Abed) Tennant said:

Q: Do you recall where you met him prior to this accident?---

Q: I suggest that you met him prior to this accident when you were at Aaron Fryer's place, when Aaron Fryer was selling drugs to Abs and you were present at the time.

How is this put to him? Where is the evidence - - -

Yeah. No offence, but how did you just make that up out of nowhere? Honestly."[81]

1. Next, Tennant was cross-examined about where Fryer parked on the freeway when he went to collect the plaintiff. Tennant said they parked on the side about 30 metres behind the police car. Tennant was then asked general questions about what happened after they collected the men from the Toyota, although that morphed back into questions about what Tennant said to police at the Broadmeadows Railway Station. Tennant repeated that he could not recall that conversation.[82]
2. Tennant was then further cross-examined about discussions with police at the Broadmeadows Railway Station as to what happened once the Commodore pulled up at the pedestrian crossing:

Q: "So at p13 of the transcript, you say, 'So we didn't park, we just pulled up like that.' That's talking about you pulling up in the car at Olsen Place. So you didn't park the car, you just pulled up?---

Q: All right. And then you say, 'As soon as we did that, fucking jumped into the front, smacked in the face, smacked me in the face. I got out of the car, he got out. He was behind me.' Do you recall that?---

Q: You don't identify who that person was who smacked you? -

Q: And you said in a previous conversation with Constable Sycz that you don't recall who was involved.

Q: 'They came around to me with poles and shit and started swinging at me'?---

A: I don't recall this conversation at the train station.

Q: You told the police that you didn't hear the crash?---

Q: I'm talking at the train station. Let's go to the train station. You told the police at the time that you didn't - - -?---

A: I don't recall the conversation at the train station.

A: I don't recall the conversation at the train station."[83]

1. The cross-examiner tried to wrap up the topic of the discussion at the Broadmeadows Railway Station by suggesting to Tennant that he was aware that the police wanted a statement from him and he used that as an opportunity to tell police he wanted them to do something for him, as follows:

Q: Like, 'I'll give you the statement but I want you to do something for me.' Do you recall a conversation along those lines?---

1. Tennant was cross-examined about whether he said to the police words to the effect of he would provide a statement but would require something from them. He was asked if he recalled a discussion about him being underage and needed to make a statement in the presence of an independent third person. He said he did not recall that conversation at the train station.[85] It was put to him that friends of the Fryer family had turned dirty on him. He said he did not recall the conversation. He was then asked:

A: Her daughter was the one that took me in to make - to get the - - -

Q: How do you know her? Do you know her as being the daughter of Helen Zarvos?---

Q: And do you remember having a conversation - speaking to Helen Zarvos about how this accident happened?---

Q: Do you remember, prior to making the statement to the police, speaking to Helen Zarvos about how the accident had happened and your involvement in the accident?---

Q: Yes, did you speak to Helen about how the accident - how Aaron Fryer died?---

Q: But you do know that Helen Zarvos is a friend of Aaron Fryer's mother?---

A: I think, yeah, after the fact they became friends.

Q: After the fact. Right. They weren't longstanding friends, they were only friends afterwards. Why would they become friends after the fact?---

A: I'm not sure. Because of her daughter, Chantelle, being able to get me to go sign the thing for her mum?

Q: And how do you know it was after the fact? How do you know it was after the fact?---

Q: But you seem fairly intent to saying to the police, 'I want youse to do me a favour. I want you to call this number.' You tell the police - - -?---

Q: You go on to say to the police, after telling them, 'I don't want to get shot', you say - Jay Tennant - it goes on to say, 'Someone else, it's - no, it's just this lady, that things I've done - things' - it should be, I suggest, 'thinks' - 'I've done nothing but do the dirty and I was - - -' Police officer, 'Is that Aaron's mum?' 'I was - Aaron's fault? No. It's Aaron's mum's best friend'?---

A: I feel like you've left out stuff. It's not making sense.

Q: 'But you know you can't really speak to Aaron's mum about it'?---

Q: You're unsure. The lady you're talking about is in fact Helen Zarvos?---

A: No, I'm unsure with what you just read because it sounds like you're missing out - it sounds broken, like you're not reading what's written, to be real.

Q: I'm just saying to you the whole intent is that you were scared of Helen Zarvos and you thought that she might be shooting you because she thought that you were involved with Aaron Fryer's death and I suggest to you that your concern was that they believed that you were not cooperating with the police and that you needed to put somebody in to demonstrate to the police that it was Omar Tiba who was responsible for the death of Mrs Fryer's son. That's the reason why you wanted the police to speak to her?---

Q: You wanted the police to speak to Mrs Zarvos and tell Mrs Zarvos - say, 'Hey, everything is cool. Jay Tennant is cooperating with us. He's going to give us a statement'?---

A: Nah. I do not recall this conversation that you're trying to say and, no, I don't think so.

Q: So why would you ask the police then to speak to Helen Zarvos and let them know that you're cooperating with them?---

A: I wouldn't. I didn't. That's what I'm saying, I don't even recall what you're saying at the train station because why would - and why would - like no. She's built like a stick, she ain't killing no-one."[86]

1. Tennant then described how the daughter of Helen Zarvos was a woman named Chantelle Loveless, who he described as his girlfriend at that time.[87] There was then the following exchange about Chantelle and how she came to witness a statement that he subsequently made at a police station, as follows:

Q: So Chantelle is your girlfriend; is that the point?---

A: And for two years afterwards as well, yes. After it, yep.

A: Correct, after the fact, yes, they started following them around and shit, yeah.

Q: And Chantelle - how old was Chantelle at the time?---

A: I really wouldn't even honestly know. I think she was like 23 or something. I was like. We had to keep it quiet and - - -"[88]

1. That brings us to the cross-examination about Tennant's statement, made to police with Chantelle Loveless as the witness to it. Tennant was asked if he was concerned about Chantelle's mother wanting to shoot him because he was responsible for Fryer's death, which was suggested to him as relevant to the statement he made to the police. Tennant disputed that.
2. In any event, he was cross-examined about being in Fryer's car when a phone call was made about collecting the men in the Toyota. Tennant recalled Fryer saying he was going to have to pick them up and he was pretty sure that Fryer only knew one of them, being "Abs".[89] He said he did not think any of the others were introduced.
3. Turning to when the Commodore stopped at the pedestrian crossing, it was suggested to Tennant that before making the statement he told police he had no recollection of what happened at the crossing. Tennant repeated that he did not recall the conversations with police before making the statement.[90]
4. Regarding whether Tennant saw anything at the commencement of the second journey:

Q: "And when you were asked about whether you saw the car - anything after the car leave, you said, I suggest to you, that you have no recollection of saying, 'I didn't see anything and I didn't hear anything'?---

A: When I was running? Yeah. I said that in my statement, yeah.

Q: And on a previous - when did you - when were you given a copy of the statement?---

Q: So you were given a copy of the statement but you also had another copy yourself; is that right?---

A: Yeah. I have it with counsellors. It helps them to keep up to date with, you know, stuff about me and how things went. The counsellors have my statement as well, yeah.

Q: When you say 'counsellors', who are you talking about in terms of counsellors?---

Q: Right. In terms of medical help, what's the type of medical help that you're receiving counselling for?---

A: Yeah. I've been receiving counselling for my whole life, since this, yeah. I get free sessions per year and I can be upgraded to even 30.

Q: You have used amphetamines and you have used cannabis, have you not?---

A: No. I am medically on cannabis at the moment, right now, like I'm medically prescribed it, if that's what you mean."[91]

1. Regarding what happened when the Commodore was stationary at the pedestrian crossing, Tennant said he jumped out of the car because "they started - yeah, he started hitting him".[92] Tennant was again challenged about that description because that was not what he said to police on an earlier occasion, leading to the following exchange:

Q: "Right. As I understand it, on one of the versions which you present, and that is there was an assault against you and against the driver of the car and you were able to observe in your mind that there was - your recollection is that there was an assault which took place at or near the pedestrian crossing; is that correct?---

Q: And what happened is that, on one version, you got out of the car and legged it immediately and you didn't hear and see nothing. On this version you have - - -?---

1. Tennant was then asked to specifically consider the written statement. He was asked how he knew the identity of the plaintiff and said:

"Because there was a four-month gap between the time of this occurring and the time the statement happened. It gave me, unfortunately, time to know who people were and all such relevant stuff, so when they did push me for a statement, it was in here."[94]

1. It was put to Tennant he had not told police, either in the initial phone call or at the Broadmeadows Railway Station, about the plaintiff punching Fryer. In that context, Tennant was asked about the lighting at the vicinity of the Olsen Place shops on the night of the collision. Tennant said it was dark because it was nighttime, but the area was lit up because of lights from the shops. He said, "It wasn't, you know - we're not pitch black blind, I'm not blind. I can still see even if it's dark".[95]
2. About Tennant's evidence of the plaintiff assaulting Fryer, there was the following exchange:

Q: "What you say in this statement is the reason for you getting out of the car was that you were assaulted. You say you were assaulted in the car?---

Q: And on a previous statement to the police, you had told them that there was an assault but you didn't know who assaulted anybody?---

Q: Right. So here we are in a situation where you're 16 years of age?---

Q: Seventeen by now. Are you talking 16 on the night or - - -

Q: Sixteen on the night. (To witness) You're 16 years of age at the time?---

Q: You're in a car, you've got some people who you describe as being - did they look threatening to you at the time? The guy had a Mohawk, stocky build, dark hair?---

Q: Wearing hoodies, olive skin, unshaven, tall and skinny. Was that intimidating to you at 16 years of age?---

Q: So these guys get out and they're assaulting you and you say that they're assaulting you with sticks?---

A: No, I said they assaulted Aaron and as soon as I jumped out, yeah, ran, yeah.

A: No, I said I thought one of them - I remember as well. I don't even need this. I remember one of them stopping to grab a stick out of the middle garden in between Olsen Place when I was running.

Q: Oh, when you were running. But at the location of the car, at the time that you got out of the car, they were assaulting or wanting to assault you; wasn't that the case?---

A: Yeah. I'm sorry, you mentioned a stick. I was bringing up the stick part. Now you're jumping back to when they got out of the car? So when we got out of the car and then I - I started running. They started chasing me and one grabbed a stick out of a garden bed.

Q: You got out of the car and then they got out of the car, what, at the same time or a different time?---

A: It was pretty - no, it was pretty much like - it was a very quick thing that happened and it was all like a rolling - you know, like a rolling thing. I don't know how to explain it. Like he jumped into the front and he hit him.

Q: You popped the door, got out of the car, because there was violence going on inside the car, you say?---

A: Yep, and I stood there and I remember him opening the door and saying something to me, like, 'You want to have a go' or something and then I remember pushing the door, but the other two got out at that same time and then, at that same time, Aaron slammed it in drive and went to take off. One of them jumped back in the car and then the other two chased me and I ran, all at the same - it was all like (whistles).

Q: And Mr Tiba didn't get out of the car, did he?---

Q: At Olsen Place, he didn't get out of the car?---

A: He cracked his door and, yeah, got out and - like half out of it and said something to me, yeah.

Q: He got half out of it but at the same time he was - on your version, he was assaulting the driver at the same time?---

A: There was a split second there where - when I got out he stopped and opened his door and stood up and said something to me and the other two were getting out and at that same time Aaron slammed it in drive and then he dove back in, the other - - -

Q: So he was assaulting the driver of the car, on your version, right? And then he stopped and he wanted to get stuck into you and then he went back into the car to assault the driver. Is that what you say?---

Q: Right. And whilst there was this break of the person who you say was assaulting the driver stopped to have a crack at you, what did the driver then do, what was he doing?---

A: He was curled up near the steering wheel and then I think he was - - -

Q: You said he was curling up near the steering wheel, being assaulted at the time. So I'm talking about when he wasn't being assaulted, what did the driver do?---

Q: On your version he was assaulted, the assault stopped, the person who was assaulting him got out to have a go at assaulting you and then he got back into the car to assault the driver again; is that right?---

A: No. Say that again, sorry? You're not even reading it. I feel like you're trying to memorise it and you're not even getting it right. No offence.

Q: 'I could see Omar punching Aaron in the face. He wasn't going easy on Aaron. Aaron was curled up at the steering wheel, trying to protect himself. As Omar was punching - keep on punching Aaron, Abs and the other guy came towards me. I pushed Abs' - - -"[96]

1. Next, Tennant was asked about what Fryer was doing at the time Tennant alleged the plaintiff was assaulting him. He said:

A: "Holding his foot flat on the accelerator. Bah, bah, bah, bah, bah. And then he realised it wasn't in drive, so he slammed it in drive and they (indistinct) and took off.

A: It spun out of control, took off and like (gestures).

Q: Spun out of control, moved at great speed down the road?---

A: Moved at various ways and directions. No, sorry. I'm just being a smart arse to you now.

Q: So within that split second - so at the time that the person was meant to be assaulting Aaron Fryer, stopped assaulting Aaron Fryer, went to get out of the car to have a go at you and whilst he got out of the car to have a go at you, you had the driver - - -?---

Q: - - - pressing the accelerator as fast as he could, spinning the wheels?---

A: No, no. It wasn't in gear yet, so it was just valve bouncing.

A: Yeah, so he's slapped it back to drive in the midst of - - -

Q: So it would have been instantaneous that he just drove off immediately after that?---

A: That's why him being - when I said he was half in and half out, he was able to dive back in and there was - - -

Q: It did. Okay. Was there a screeching of the wheels?---

A: No. It was pretty wet, so it was just a lot of spin.

A: It was a rainy - I do remember it was a rainy night and it was just spinning, it was just - - -

A: Yeah, I know, right. I'm going to lock it in, Eddie: it was raining.

A: Because, yeah, when he flat footed, I know as a mechanic - - -

Q: So there would have been no time for him after getting back into the car, he was - it immediately took off, it was on the way down the road and you were running in the opposite direction?---

A: Yeah. As I said, he was half out of the car. I didn't say he'd completely got out of the car. You're trying to do that for him.

Q: So he's half out of the car when the car moved off?---

Q: Was the person half out of the car when the car moved away from the pedestrian crossing down Widford Street?---

A: At that moment, that's when I was turning around and running. So, yeah, he must have dove back in.

A: No, yeah. Yeah, I seen - I looked at Aaron and that's when he's - I seen him snap to drive and then I thought, at the same time, 'He's getting out of here, get out of here.' And that's when I started running and it was all like - I don't know how to explain it. It just happened so like, you know - I don't know."[97]

1. What happened at the pedestrian crossing and what Tennant had said in his statement was explored further in cross-examination as follows:

Q: "And as I understand it, at the time that this person was half in and half out of the car, the driver was wanting to engage the gears of the car and had his foot on the accelerator, flat on - I think you said flat on the accelerator; would that be right?---

Q: And it was at that stage that I think you said fishtailing as well?---

Q: Did you say fishtailing? Not at that point in time?---

A: No. I said the wheels were spinning erratically because it was a bit wet.

Q: The wheels were spinning, right. And then the bloke - - -?---

Q: The person who you said had a go, you slammed - I think you say that, 'He was half in, out' - 'I kicked the rear door. He was half in and half out.' That's your recollection, is it?---

Q: Right. And it was at that stage that you then took off. You then took off; is that right?---

A: I'm going to be honest. From where you start with what you're telling me and then where you end up, you totally lose the whole front half, so I don't even know what I'm answering anymore. I'm confused as shit.

A: Yeah. When the car started to move, when he put it in drive and it started moving, yeah. I was left with two other gronks, people, so I ran for my life."[98]

1. Tennant was next cross-examined about Baades' evidence of observing an argument between the occupants of the Commodore at a pedestrian crossing. In that context, Tennant was asked whether there was a loud argument inside the car and said:

Q: "... Was there a loud argument inside the car?---

A: It wasn't arguing or yelling, it was just straight hits, me getting out, everyone else getting out, me running and them chasing."[99]

1. The observations of Baade were a segue for the cross-examiner to return to what happened immediately before and after Tennant got out of the Commodore, as follows:

Q: "Do you recall whether the driver's side rear passenger door was ever opened at any stage?---

A: Yes. That's the door they exited from, the two - - -

Q: The driver's side rear passenger door. Do you know whether that was opened at any stage?---

A: The driver's side rear door. Yes, the door that they got out of. I keep saying that to you and it's in my statement.

Q: So they got out not on the rear passenger-side door - - -?---

A: No. That's the side Omar was sitting on, behind me, like I said, when he reached over to get Aaron (punches fist). Why are we going around in circles here? No offence. It's sort of over money as well. You're just dragging it now. Like no offence, bro.

Q: I suggest to you that in the statement which was made by Mr Baade, he gives - he makes no reference to any assault or fighting taking place in or near the car?---

A: I said yes, the fighting was inside the car, so when he lent over to hit - so if anything, that helps me."[100]

1. Next, Tennant was further cross-examined about his movements after he got out of the Commodore:

Q: "... On your evidence, it seems that in terms of you - your actions after you got out of the car, it was very quick between the time that you got out of the car to the point in time that you started running away?---

A: The whole scenario was pretty quick, that's what I was saying, the way it all happened; we pulled up, he jumped over, hit, hit, I got out, the other two - - -

Q: The reason for you getting out is that you just wanted to get away?---

A: Yeah, yep. I wanted to get away from the scene, the commotion. It's not my - that wasn't my - - -"[101]

1. Tennant was cross-examined about his own criminal offending, in what was ultimately said to be relevant to the issue of credit. He was said to be a person who was prepared to give a false story or a false version, to which Tennant said:

A: Well, if you think my story from that - from back then to me here now is a lie, that's on you.

Q: And at the same time, part of the reason for you running is that you were concerned - - -?---

Q: No. You were obviously concerned about being injured; I think you've said such. You were running because you were scared?---

Q: You were scared of being assaulted. That's right, isn't it?---

Q: And you were also scared because at the time you knew that there were drugs underneath the front seat of the vehicle, underneath, in fact, where you were seated?---

A: Okay. Can we bring in lie detector tests, please, because I'm sick of him accusing me of stuff.

Q: Don't do that. You were asked a question. If you know the answer - - -?---

A: No, I did not. No, I did not. I did not, no. A thousand per cent no, I did not. And if you want to know anything, this is the first time I've heard about that.

Q: I suggest to you that the reason why you were in the car with Mr Fryer was not for the purposes of fixing a CD player but was for the purposes of selling drugs?---

A: And I can promise you right now that you are completely wrong and you - - -

Q: And you were in the car to assist him in the sale of drugs?---

A: No. You - no, nope. Like I said, happy for a detector test of any sort."[102]

1. Tennant said in re-examination about having had counselling:

Q: "Why were you having counselling in relation to this incident?---

A: Because it's affected me, it really has. I'm a lot more aggressive, I answer people with aggression and nothing else and it's not good. It's changed me, so I want to fix myself."[103]

1. The plaintiff submitted that Tennant was not a witness of truth, and no weight should be placed on the evidence given by him.[104]
2. If Tennant's evidence about the plaintiff punching Fryer is rejected, then the evidence at its highest about an 'assault' on Fryer is that given by Baade, that he saw men having a heated verbal argument.
3. In isolation the evidence from Baade in my opinion would not be enough for a conclusion that the plaintiff assaulted Fryer.
4. To conclude that the plaintiff assaulted Fryer, I must accept the evidence from Tennant on that point, where some of Tennant's evidence was unreliable and a fabrication.
5. But just because Tennant was at times unreliable, or even dishonest, that does not mean that I must reject all his evidence. What it means is scrutiny is required to determine which parts of his evidence I accept.
6. As a starting point in the consideration of Tennant's evidence, Tennant consistently presented as a very unsophisticated witness, both in his dealings with police and in the witness box.
7. Next, some of the cross-examination of Tennant was from sources that are not part of the evidence. Tennant maintained that he could not recall initial conversations with police. Busic and Manniche themselves also had a poor memory of those conversations. The fact Tennant now has a poor recall of events that happened over fourteen years ago is not, of itself, a reason to conclude that Tennant was dishonest.
8. The challenge to Tennant's evidence was substantially built around the assertion that he said nothing about an assault on the first or second occasions that police tried to speak to him.
9. The thrust of the cross-examination was that Tennant had invented the assault by the time he made his statement because of some external pressure or a fear he was going to be shot. Whatever the reason, I accept that Tennant was reluctant to provide a statement. Perhaps that is no surprise, where after the collision the investigating officers reported the collision to the Santiago Task force.
10. Regardless, in the context of an unsophisticated person, who was a teenager at the time of the collision, known to police and with an attitude towards police, just because he did not volunteer a statement is not of itself a reason to dismiss what he said in his statement or in his oral evidence.
11. The plaintiff contends that Tennant made up the assault and some of the events leading up to the collision, and repeated those lies in Court. But on my assessment of him, that stamps him with a level of sophistication that he lacked.
12. Whatever I might think about Tennant as a witness, when he finally told his story to the police, it generally made sense and was consistent with the other objective evidence. Further, Tennant broadly stuck to the evidence in his statement during a probing cross-examination. If it was all lies, I doubt he had the sophistication to keep up the lies in the witness box.
13. I also found some of Tennant's evidence to be poignant, such as in re-examination where he described the effect the death of Fryer had on him.
14. In fact, rather than impugn his credit, I consider that his oral evidence revealed Tennant to be a reliable and truthful witness about most of the events of the night of the collision.
15. Tennant may have been unreliable about how he knew Fryer, or what they were really doing on the night Fryer died. But I do not consider that to be a reason to dismiss what Tennant said about events relevant to the collision. In other words, his unreliability goes to issues not critical to the result of this proceeding. I conclude that overall Tennant's evidence about the collision fits with the other relevant evidence.
16. I accept Tennant's evidence about what happened once Fryer stopped at the pedestrian crossing and what happened shortly after, because generally it fits with the objective evidence.
17. I accept Tennant's evidence that the plaintiff assaulted Fryer at the conclusion of the initial journey and at the commencement of the second journey, by punching Fryer to the head.

1. Returning to summarise the evidence, and to explain in a little more detail why Tennant's evidence about the collision was reliable, first there is the evidence from Busic and Manniche. Their evidence confirmed Tennant's evidence that Fryer parked the Commodore some distance behind where the intercept occurred. Objectively, Tennant was not one of the three men in the Toyota when it was intercepted.
2. Second, the objective evidence is that Fryer drove in an unremarkable manner both to collect the three men from the Toyota and then on to the pedestrian crossing. The police did not observe anything remarkable about how Fryer drove to the point of the intercept or when he left. Tennant was not cross-examined about Fryer's driving of the Commodore on the night in question.
3. Third, Fryer drove the Commodore to the pedestrian crossing near the Olsen Place shops, where it came to a stop. Baade saw a heated verbal argument between four men, again generally consistent with what Tennant said. I note that Baade was concerned for his own safety.
4. Fourth, objectively by the time of the second journey, only Fryer and the plaintiff were in the Commodore. Tennant and the two other passengers had exited the Commodore which I accept was because of the argument as witnessed, at least in part, by Baade.
5. I accept that Tennant got out of the Commodore because he was concerned for his own safety and because of the aggressive behaviour by the plaintiff.
6. On this point, it should not be forgotten that El-Abed was a witness in the plaintiff's camp who could have been called to dispute the evidence of Tennant. I accept the defendant's submission that an inference can be drawn that his evidence would not have assisted the plaintiff. Therefore, I can more readily accept Tennant's evidence about the assault of the plaintiff on Fryer because of the unexplained failure to call El-Abed.
7. Fifth, I accept the evidence given by Tennant of witnessing an assault by the plaintiff on Fryer. I accept that the plaintiff punched Fryer to the head shortly before Tennant exited the vehicle. I accept that Tennant saw an ongoing assault as he ran from the vehicle.
8. Sixth, Tennant then gave credible evidence of what Fryer did in revving the car before speeding away from the crossing. That evidence is consistent with the objective evidence of the road being wet, the yaw marks and police estimate of speed.
9. Seventh, at the commencement of the second journey, Fryer suddenly accelerated from the pedestrian crossing. Fryer then made a steering input to the left, not being an attempt to turn the vehicle, causing him to lose control of the Commodore. In my view, that is consistent with the evidence of Tennant of an assault occurring inside the vehicle, such that Fryer has made the ill-fated decision to accelerate suddenly and in doing so has lost control, or the effect of the assault caused a steering input that put the commodore into oversteer and to become out of control. These conclusions are consistent with the evidence from Williams.
10. It is a proper inference, based on the direct evidence of Tennant and to a lesser extent from Baade, in combination with the objective evidence at the scene of the collision as described by Williams, that because of an argument that developed into an assault, Fryer decided to quickly drive off while there was an ongoing assault to him by the plaintiff, which almost immediately led to the collision.
11. I am fortified in these conclusions by the opinion of Manniche, who was the informant for the police brief to the coroner. Manniche said in his statement that a cause of the collision was the altercation inside the vehicle between the plaintiff and Fryer. The cross-examination of Manniche did not cause him to retract what he had said in his statement.

1. Because of the factual conclusion that the plaintiff was assaulting Fryer immediately before the collision, the question is whether the defence is made out, and no duty of care was owed.
2. But, there is also first a question whether it was the assault that was a cause of the collision, as opposed to any negligence of Fryer, assuming for the moment that a duty was owed.
3. In final submission, the plaintiff accepted that the concept of reasonable care depends on all the circumstances of the case.[105]
4. But the plaintiff contended that regardless of the conclusion the court might make about Tennant's evidence a duty of care was owed.[106]
5. The plaintiff said that if the court concluded that he was assaulting Fryer as observed by Tennant, there was no evidence that the assault continued[107] to the point of the collision or was the cause of the collision. He submitted that a duty was still owed, said to remain as the duty expected of a normal passenger and driver scenario.[108]
6. In final address, the plaintiff conceded that there could be a factual scenario where the conduct of a passenger negated the existence of a duty of care. But he submitted that in this proceeding the duty existed because the defendant had hung its hat on a very small and isolated incident in the whole body and scope of circumstances that are before the Court.[109]
7. On this point, lead counsel for the plaintiff submitted that:

"Even if we take Mr Tennant's view that there had been an assault, the question is whether that assault still continued on and negates the obligation of the driver who elects to drive the car forward and continues to drive the vehicle to the point where it goes - it causes an accident.

And there is no evidence at all before the court that, subsequent to the alleged assault which took place in the Widford Street near the pedestrian crossing, there was a continuing assault or that the effects of the alleged initial assault were sufficient to impact and cause the driver to lose control and act in a way that placed the plaintiff in danger of injury.

And also, Your Honour, it's relevant to take into account and not - and fail to consider the other aspects of the vehicle itself. In other words, the ongoing obligations that there was speed involved subsequent to the incident, speed which was well in excess of the speed limit. The police incident report identifies 50 kilometres an hour being the speed limit in that section of the road and you find in a very short distance the driver is driving at - estimated by the police, and it's been accepted, as 70 kilometres an hour.

You also have the fact that the driver drove off in circumstances where - with a passenger in a car - there are four bald tyres on a wet road surface. In other words, the isolated momentary assault - - -"[110]

"The standard of care - there is no evidence to suggest that at the point in time that the assault took place, there was a prospect of injury to either the plaintiff or the defendant flowing from the driving of the vehicle. The car was stationary. The car moved on voluntarily by the driver. The driver was in control of the car, not the back-seat passenger.

The back-seat passenger, although it's alleged that he might have had some influence over the driving, there's nothing - and it's not being suggested that there was anything which would prevent the driver himself from stopping the car. He elected to continue driving. Was it unreasonable for him to elect to continue driving when he still has an obligation, as a driver, to a passenger or third party?

Moreover, what happened is that, even at its height, an alleged assault took place and there was a cessation of the assault, and that's based on Mr Tennant's evidence. Because, Mr Tiba was allegedly trying to get out of the car and, whilst he was trying to get out of the car, the driver was trying to engage the gears of the vehicle so he could drive off without the driver [sic] being in."[111]

1. Next, lead counsel for the plaintiff said that if the Court were to conclude that there was an assault, that of itself did not displace the ordinary duty of care, but that:

"It might change the nature of the duty but it doesn't change the fact that there is a duty of care owed."[112]

1. When asked by the Court how it might change the duty, counsel said, in effect, whatever the change, it did not "absolve the driver of his fundamental duty to drive in a safe and proper manner."[113]
2. Then, in a submission about the evidence, or perhaps lack of evidence, of any assault continuing beyond six metres from the pedestrian crossing, lead counsel for the plaintiff said:

"MR DEALEHR: But there is no evidence at all of any continuing assault, at its worst, past 6 metres from the pedestrian crossing. There is no evidence to suggest at all that the assault which took place say from the pedestrian crossing to that 6 metres in any way contributed to the circumstances of the accident. It would be - and I would suggest that - - -

HIS HONOUR: Just so I follow. You say even if there was to be an adjustment to the normal duty of care for the first 6 metres of the ill-fated trip by Mr Fryer - - -

HIS HONOUR: So he commences at a time when he owes some modified duty of care but at some point it snaps back to the ordinary duty?

MR DEALEHR: That point where it cannot be suggested that an assault continued on past the 6 metres."[114]

1. In summary, the plaintiff contended that even if there had been an adjustment of the normal duty, there was no evidence that any assault occurred beyond six metres from the commencement of the second journey, and so at that point the normal duty applied.[115]
2. The plaintiff contended that this was simply a case about driver and passenger. The plaintiff was not complicit in the driver's offending, and it could not be said that there was any extinguishing or modification to the relevant duty of care owed by the driver to the plaintiff.
3. Despite conceding that the concept of reasonable care depends on all the circumstances of the case, the plaintiff's submissions ignore all the circumstances of the case once Tennant's evidence is accepted. The plaintiff refused to concede that if he was assaulting Fryer, that was relevant to considerations of the duty owed, or breach of duty. To be clear, I do not accept that the assault as described by Tennant was a very small and isolated event. As such, it cannot be dismissed as irrelevant to the fundamental question of whether a duty was owed by Fryer to the plaintiff.
4. I reject the plaintiff's submission that the usual duty of care owed by a motorist to other road users remained the one that Fryer owed to him. The rare scenario of a passenger assaulting the driver displaced the usual duty of care owed by a driver to a passenger. It is trite to note that on the facts as found, this was no ordinary passenger.
5. The assault is part of the circumstances of the case and simply cannot be ignored when considering issues to do with the existence or scope of any duty owed. The issue is whether a duty can be framed in all the circumstances of an assault by a passenger on the driver.
6. While the duty alleged by the plaintiff may not be novel, the salient features and factual analysis is still relevant to the existence of a duty of care. In this proceeding the duty alleged arises where a passenger was assaulting the driver of a car. Adopting what Keogh J recently said albeit for a consideration of an alleged novel duty in Malaspina & Ors v State of Victoria,[116] a close examination is therefore required of salient features such as foreseeability, degree of harm, vulnerability, reliance, and assumption of responsibility. In addition, other factors such as coherence and conformity with other duties or legal obligations must be considered. I consider that those considerations are apposite for a consideration of whether a duty was owed, as well as the scope, content or breach of duty.
7. Further, and perhaps at a more fundamental level for the result in this case, I do not accept that inferences may be drawn that ignore the direct evidence, to establish the case argued for by the plaintiff. Because of the factual conclusions I have made, it is unnecessary and would be wrong to draw inferences inconsistent with those factual conclusions. To dismiss the role of the assault would invite speculation, rather than logical deduction, as to the cause of the collision.

An analysis of the duty alleged based on the factual conclusions

1. First, on the balance of probabilities, I conclude that the plaintiff was assaulting Fryer while the Commodore was stationary at the pedestrian crossing. I accept that the assault was by punching him to the head or upper body and that it continued at the commencement of the second journey. Tennant's evidence supports the logical conclusion that the assault was likely to have continued in the 4-6 seconds it took the Commodore to travel to the pole.
2. Second, the objective evidence from the tyre marks, the police conclusions regarding speed and unexplained steering input, in my opinion, further support a conclusion that it was the assault by the plaintiff on Fryer that caused him to lose control of the Commodore and not anything otherwise to do with the condition of the Commodore or of Fryer himself.
3. Third, the condition of the Commodore and Fryer are relevant, but the objective evidence is that the Commodore was driven appropriately by Fryer from the Western Ring Road to the Olsen Place shops. It was not suggested to Tennant that Fryer's driving was impaired in anyway during the first journey. This tends against the inferential conclusion that Fryer was so impaired, or so inexperienced, or so affected by methamphetamine, that he failed to safely drive the Commodore, or that the Commodore was inherently so unsafe to cause the collision.
4. Fourth, it took something more than the condition of the Commodore or Fryer to cause the collision, namely the assault on Fryer by the plaintiff.
5. Fifth, overall it was incumbent upon the plaintiff to prove breach of the duty alleged to have been owed to him by Fryer. I reject that it was sufficient to establish a duty of care owed by Fryer on the basis that his driving of the commodore would create the foreseeable risk of injury to the plaintiff. There were other factors at play in this case because the plaintiff was assaulting Fryer. There is no evidence of a breach a duty of care that was causally related to the plaintiff's injuries, even if a duty existed.

1. First, dealing with general principles, the duty a motorist (here a driver) owes to other road users (here a passenger) has been described frequently as a "well settled duty".[117]
2. Second, in Kuhl v Zurich Financial Services Australia Ltd,[118] French CJ and Gummow J stated that cases that involve the duty of a motorist towards other users of the road "ordinarily involve no real controversy over the scope and content of the duty of care". But, as is the situation in this proceeding, that recognises that some rare cases, may raise such questions.
3. Third, the scope of the common law duty of care required that reasonable care be taken to avoid the relevant risk of harm. The standard of care is the label given to the issue of what reasonable care required on the facts of a particular case, to avoid breaching the duty of care.
4. Although in the context of a work injury, but still relevant guidance, as said recently by the Court of Appeal in Robinson v EACH Ltd[119] the content, or scope of that duty is determined by the event giving rise to the claim and the foreseeability of the risk of injury in those circumstances.
5. Further, as confirmed in Robinson, the often cited statement of principle by Mason J in Wyong Shire Council v Shirt[120] remains the foundation for the law of negligence, namely that in a consideration of breach, the tribunal of fact must first ask if a reasonable person in the defendant's position (or here, in Fryer's position) would have foreseen that his conduct involved a risk of injury to the plaintiff.
6. Fourth, in that context, the person who owes a duty of care is not required to take reasonable care to avoid all risks of harm to some other person.[121]
7. It should be remembered that the duty of care must be stated by reference to the kind of damage (the risk of harm) that the plaintiff suffered.
8. Fifth, there is an obvious problem for the plaintiff, namely, how to establish a duty of care for injuries suffered by him which resulted from his own actions in assaulting the driver.
9. Sixth, I consider that the salient features relevant to the relationship between the plaintiff and Fryer are relevant both to the existence of the duty of care, but also to the scope or content of any such duty. The relationship here is one of a passenger electing to assault a driver of a motor car. Any duty arising from that relationship must consider all the circumstances.
10. The plaintiff contended that Fryer should not have driven the car if the Court concluded that he was being attacked. That may be easy to say with hindsight, but not so easy to say looking at the situation prospectively. It is trite to ask a rhetorical question, what is the foreseeable risk of injury to the plaintiff that Fryer should have foreseen while being punched to the head? Perhaps all he could have foreseen was a risk of injury to himself? The plaintiff chose to attack a person in control of a motor car. In such a scenario, on the facts in this proceeding, that displaced the usual duty of care that Fryer owed as the driver of a motor car.
11. Seventh, the defendant referred to Miller v Miller,[122] where the plurality said that if two persons participate in the commission of a crime, each takes the risk of the negligence of the other in the actual performance of the criminal act and neither participant owes a duty of care to the other.[123]
12. The defendant referred to the following passage in Miller, where the plurality said:

"What has been said about the previous decisions in this Court shows that some propositions can be made. First, the fact that a plaintiff was acting illegally when injured as a result of the defendant's negligence is not determinative of whether a duty of care is owed. Second, the fact that plaintiff and defendant were both acting illegally when the plaintiff suffered injuries of which the defendant's negligence was a cause and which would not have been suffered but for the plaintiff's participation in the illegal act is not determinative. Third, there are cases where the parties' joint participation in illegal conduct should preclude a plaintiff recovering damages for negligence from the defendant. Fourth, different bases have been said to found the denial of recovery in some, but not all, cases of joint illegal enterprise: no duty of care should be found to exist; a standard of care cannot or should not be fixed; the plaintiff assumed the risk of negligence. Fifth, the different bases for denial of liability all rest on a policy judgment. That policy judgment has sometimes been expressed in terms that the courts cannot regulate the activities of wrongdoers and sometimes in terms that the courts should not do so."[124]

1. In this proceeding, while the parties were not acting in a joint illegal activity, but as highlighted in Miller, even if Fryer was acting illegally by driving without a valid licence, in an unroadworthy car and while impaired by methamphetamine, that of itself is not necessarily sufficient for the plaintiff to recover damages. The Court must also look at and consider the plaintiff's conduct, that of committing an assault on Fryer.
2. This can hardly be a surprise because duties of care arise by reference to all the circumstances of the case.
3. As already articulated, the assault was a relevant factor in the cause of the collision. Therefore, contrary to the contentions of the plaintiff, before moving to inferential reasoning to determine issues such as breach or scope of duty, the direct evidence of the assault must be considered. To ignore the assault would not result in a logical conclusion drawn from inferences.
4. Regardless, on the facts of this proceeding, because of the assault, Fryer did not owe a duty of care to the plaintiff at the time of the second journey and up to the collision. Contrary to the submissions of the plaintiff, it is not possible to frame the scope and extent of the duty of care that he alleged Fryer owed him, based on all the circumstances.
5. The plaintiff advanced arguments to support his contention that the usual duty of care applied. But those arguments ignore the central question of what is the duty of care owed where a violent assault is occasioned to the driver of a motorcar?
6. In short, in a rare case such as this one, there can be no duty of care owed. The facts as found do not enable the content or the scope of the alleged duty to be ascertained from all the circumstances of the case.

1. Whether the task is approached by a consideration of was a duty of care owed, or by a consideration of what the relevant standard of care required, the result is the same.
2. The plaintiff was assaulting Fryer. There was no duty owed. A standard of care or scope of the duty alleged cannot be determined based on all the circumstances. Overall, regardless of the fact that I consider a duty was not owed as alleged, based on a consideration of the facts as found, there was no breach of duty that was causally related to the collision.
3. Therefore, for the reasons given, the plaintiff failed to discharge his onus, and the proceeding fails.

A brief word about contributory negligence and damages

1. For completeness, even if a duty of care was owed and a standard of care could be framed, I consider that the conduct of the plaintiff in assaulting Fryer to be substantially, if not wholly, the cause of the collision.
2. In those circumstances, in a consideration of contributory negligence, I apportion his responsibility at 90 per cent and would reduce any damages accordingly. But I would not make any reduction for the 'seat belt' defence.
3. Regarding damages, I have considered the lay and medical evidence, including the oral evidence from Mr Raf Asaid, orthopaedic surgeon. As a general comment, all the medical examiners lack a proper history. As Mr Asiad noted, the radiological examinations of the plaintiff's right hip are out of date and the risk of any arthritic change cannot be determined.
4. But the plaintiff suffered a nasty injury to his hip as well as a closed-head injury when he was only twenty-one years of age. However, where his evidence is unreliable, I do not accept as accurate his evidence as to persisting impairment consequences. This was highlighted by the discrepancy about the restrictions he claimed to have when attending at a Mosque, as compared to what his brother said about that in his oral evidence.
5. Doing the best I can on a body of unreliable evidence, I would assess his pain and suffering damages at $250,000, before any statutory reduction pursuant to the Act.
6. In respect to pecuniary loss, his claim for pecuniary loss fell away on the evidence, to the point it did not exist.
7. In effect, his lead counsel invited the Court to award a modest sum for future loss of earning capacity almost on a Farlow[125] type basis.
8. The plaintiff had the evidentiary onus to establish what his earnings were or what his earning capacity was, before the collision, and what he has lost by reason of injuries suffered in the collision. He simply did not do that. Accordingly, I consider that any claim for pecuniary loss was not made out.
9. I shall hear from the parties as to consequential orders.

[1] Collins v Insurance Australia Ltd [2022] NSWCA 135 per Kirk JA at [8]

[17] [1959] HCA 8; 101 CLR 298

[22] (1951) 217 ALR 1, 5.

[23] [2017] VSCA 88 at 101 ("Masters").

[24] [2021] VSCA 170 at 27

[25] Dr Neilson gave her qualification as a neuropsychologist in her oral evidence

[33] Exhibit D4, Defendant's Court Book ("DCB") 86-95

[116] [2024] VSC 338

[117] See, as an example, Imbree v McNeilly [2008] 236 CLR 510; [2008] HCA 40 at paragraph [49].

[118] [2001] 243 CLR 361; [2011] HCA 11 at paragraph [22]

[119] [2024] VSCA 313 at [118]

[120] [1980] HCA 12; (1980) 146 CLR 40

[121] See, as an example, Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] 205 CLR 254; [2000] HCA 61.

[122] [2011] HCA 9; (2011) 242 CLR 446

[125] Victorian Stevedoring Pty Ltd v Farlow [163] VR 594