VALE v VALE & ANOR

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40667/99 MASON P DAVIES AJA IPP AJA

Thursday 2 August 2001 Linda Ann VALE v Malcolm Geoffrey VALE & Anor

The appellant Mrs Vale (the plaintiff) suffered severe brain damage as the result of an accident where the car in which she was travelling left the road. The driver of the car had been negligent. Mrs Vale has no recollection of the accident.

The car was owned by the plaintiff's father. It was registered and insured for compulsory third party insurance with the second respondent (NRMA). The driver of the car was therefore indemnified against liability under s9 of the Motor Accidents Act 1988 (the Act).

In 1994 the plaintiff sued Mr Vale in the Supreme Court. NRMA was permitted to be joined as a party to the proceedings. Mr Vale filed a defence admitting all of the essential allegations. NRMA filed a defence denying that Mr Vale was the driver and otherwise putting the plaintiff to proof.

The proceedings were transferred to the District Court. The trial judge was faced with a choice between two scenarios: either Mrs Vale or Mr Vale was driving at the time of the accident. Evidence had been called in support of both scenarios. Mr Vale was not called by any party.

The trial judge found on the balance of probabilities that Mrs Vale was the driver and Mr Vale was not, giving a verdict in favour of each defendant. The judge also declined to draw any inferences adverse to NRMA from its failure to call Mr Vale.

In the appeal the appellant brought various factual challenges to the trial judge's finding that the plaintiff had failed to establish that her husband was the driver. The question of whether NRMA's failure to call him should have given rise to an inference favourable to the plaintiff based on the principles in Jones v Dunkel (1959) 101 CLR 298 also remained in issue.

Held by Mason P, Davies AJA and Ipp AJA agreeing: 1. It was properly open to the trial judge on the totality of the evidence to conclude that the plaintiff had failed to establish that her husband was the driver.

The trial judge erred in finding that the appellant had to prove her case against NRMA and that a verdict would have been entered against both defendants had the plaintiff succeeded. Section 66A of the Motor Accidents Act 1988 is not intended to affect the substantive rights at issue in the proceedings to which the insurer is joined as a party. The insurer has the power to make submissions as to the ultimate issue, and the power to appeal or insist on being a party to an appeal. Insurance Exchange of Australia v Dooley (2000) 50 NSWLR 222 (cited). Section 66A(7) recognises that an insurer need not be a defendant in relation to a claim. However, this error led nowhere, as the purpose of NRMA's role was to enable it exercise all its powers directed to showing that Mr Vale was not liable.

There is a distinction between NRMA's role as intervening defendant and Mr Vale's role as defendant in the proceedings. The admissibility of Mr Vale's out of court admission of liability was to be determined solely by reference to whether it was admissible against Mr Vale, as no claim was made against the NRMA. The trial judge erred in relying on s 83 of the Evidence Act as a ground for treating Mr Vale's admission as irrelevant to the claim against the insurer. However, no miscarriage occurred as a result, as the weight to be attributed to Mr Vale's admission is minimal.

The judge did not err by refusing to draw a Jones v Dunkel inference in the plaintiff's favour by reason of NRMA's failure to call Mr Vale. The power to call and examine witnesses contributes nothing to whether a Jones v Dunkel inference should be drawn. ( O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 128 ALR 718 (referred)) Jones v Dunkel was not overlooked: it was simply not applied in the plaintiff's favour.

Payne v Parker [1976] 1 NSWLR 191; Spence v Demasi (1988) 48 SASR 536; Ghazal v Government Insurance Office of NSW (1992) 29 NSWLR 336; Fabre v Arenales (1992) 27 NSWLR 437; (referred)

The Motor Accidents Act does not intend that an insurer be unable to put in issue the question whether an accident occurred in circumstances which activated the third party policy.

The NRMA could not be expected to call Mr Vale, who was another party putting the opposite contention. The findings of the trial Judge were well based on the evidence before her.

ORDERS 1. Appeal dismissed. 2. NRMA to pay Mr Vale's costs in accordance with the undertaking given to Master Malpass. 3. NRMA's costs including those payable to Mr Vale are to be paid by the appellant. *******

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40667/99 MASON P DAVIES AJA IPP AJA

Thursday 2 August 2001 Linda Ann VALE v Malcolm Geoffrey VALE & Anor

1 MASON P: On 14 November 1992 the appellant Mrs Vale (the plaintiff) was seriously injured when the Toyota Land Cruiser in which she was travelling left the road. She suffered severe brain damage and has no recollection of the accident. The driver was obviously negligent. The evidence indicated that the driver was either the plaintiff or her husband, the first respondent (Mr Vale). The plaintiff failed at trial because the judge was satisfied that she was the driver.

Procedural history 2 The car was owned by the plaintiff's father but it was in the possession of the plaintiff and her husband. It was registered and insured for compulsory third-party insurance with the second respondent (NRMA). It follows that the driver was indemnified against liability in accordance with s9 of the Motor Accidents Act 1988 (the Act). 3 On 31 March 1993 the plaintiff lodged a Personal Injury Claim Form in accordance with s43 of the Act. It asserted that Mr Vale was the driver. The accompanying statutory declaration was sworn by Mr Vale because the plaintiff's injuries prevented her from doing so. 4 On 29 September 1994 the plaintiff sued Mr Vale in the Supreme Court. She pleaded that he was the driver and that the accident occurred due to his negligence. 5 On 12 April 1995 an order was made on the insurer's application that NRMA be joined as a party to the proceedings. The order was made pursuant to s66A of the Act which will be set out below. 6 On 13 June 1995 the plaintiff filed an amended statement of claim which named Mr Vale as the first defendant and NRMA as the second defendant. The allegation that Mr Vale was the negligent driver remained unchanged. Thereafter Mr Vale filed a defence admitting all of the essential allegations and NRMA filed a defence denying that Mr Vale was the driver and otherwise putting the plaintiff to proof. 7 The proceedings were transferred to the District Court and came on for trial before Judge Sidis in June 1999.

Outline of Judgment at first instance 8 Judge Sidis published a reserved judgment on 15 July 1999. She found a verdict in favour of each defendant. 9 After setting out the procedural history, the judge made findings as to matters which were not or are no longer in dispute. The plaintiff was aged 36 at the date of the accident. She suffered very serious injuries and is substantially disabled as a result of brain damage and other physical injuries. The quantum of her claim was agreed. 10 The accident occurred on 14 November 1992 on Blue Springs Road, Gulgong sometime between 10.30 and 11.00pm. 11 Mr and Mrs Vale and their two sons, Geoffrey (then 8) and Ian (then 6) attended a party at Uarbry. Alcohol was consumed by several of the guests. Ms Sharon Stephenson also attended the party accompanied by her de facto husband and four young sons. She argued with her husband and he left without her and the children. Since she lived near to the Vales she arranged to be driven home with the Vale family. 12 When the vehicle left the party Mrs Vale was driving and Mr Vale was seated in the front passenger seat. Ms Stephenson was in the rear passenger seat immediately behind Mr Vale. Her four sons were also in the rear passenger seat, arranged two to each seat belt. Geoffrey and Ian Vale were in the compartment at the rear. 13 At a point on Blue Springs Road known as Pinnacles Corner, whilst travelling south towards Gulgong on a gravel road, the vehicle failed to negotiate a left hand bend. It rolled over, coming to a stop in an upright position. There was damage to the front end and front roof of the vehicle with major damage around the off-side forward portion. (Evidence at trial indicated that the distance between Uarbry and the place of the accident was approximately ten kilometres.) 14 Expert evidence had been called by the plaintiff and the NRMA. There was consensus that Mrs Vale's injuries were most probably caused when she was ejected from the vehicle during the accident. The experts were, however, unable to cast any decisive light on the issues of whether Mr and Mrs Vale were wearing seat belts, who was sitting where in the front seat, and whether or not Mr Vale had also been thrown out of the vehicle during the accident. Most of the conclusions which they expressed depended upon factual suppositions which were unproven or turned out to be contrary to the facts. The judge said that the expert evidence was of little assistance in determining the identity of the driver (s3.1). 15 This said, her Honour later supported her conclusion that Mr Vale was not the driver by apparently accepting the evidence of the two experts that Mr Vale's injuries (fractured ribs, abrasions and lacerations) were not suffered inside the vehicle (s7.2(3)). She also accepted the evidence of Mr George (the plaintiff's expert) and Dr Caterson that there was no evidence to support the proposition that Mr Vale's injures were consistent with interaction with his seat belt or impact with the steering wheel (s7.2(4)). 16 The trial judge set out the evidence of those in the vehicle who were called as witnesses and then the evidence of the other witnesses. 17 Her Honour then weighed the evidence indicative of Mrs Vale being the driver and that indicative of Mr Vale being the driver. She discussed the impact of Mr Vale not having been called as a witness by any party. In the final section of the judgment, she concluded on the balance of probabilities that Mrs Vale was the driver and that Mr Vale was not. I shall return to her reasons after surveying the course of the trial.

The conduct of the trial 18 Each party was represented at trial by experienced counsel. Counsel for Mr Vale took a relatively inactive part in the proceedings, aimed at maintaining the pleaded stance that his client was the driver. He did not challenge the plaintiff's witnesses and he called no witnesses. His cross-examination of the witnesses called by NRMA was directed to supporting the plaintiff's case. He tendered three documents which have not been reproduced in the appeal record (Black 233). At one stage during argument he acknowledged that "there is of course a coincidence of interest" [between the plaintiff and the first defendant] (Blue 52). That coincidence of interest was maintained in this appeal. 19 It was never in dispute that Mr Vale was and remained in the plaintiff's camp and was an available witness. He was not called by any party. What was and remains in issue is whether the failure of NRMA to call him should have given rise to an inference favourable to the plaintiff based on the principles in Jones v Dunkel (1959) 101 CLR 298. 20 The trial took place in the country and there was some interposition of witnesses or tendering of documents by one party when another party was in its case. In what follows I have ignored this detail. 21 The plaintiff's counsel called five witnesses: (1) the plaintiff , who established that she had no recollection of the accident.

(2) Mr Lord , a friend of the Vales. He saw them at the party but did not see them leave. He came upon the accident scene as he drove home. He arrived after Mr Haywood (below) and at a time when no one was in the car. Mr Lord saw the plaintiff lying unconscious near the middle of the road and Mr Vale lying on his back in the gutter. He spoke to Mr Vale, who was basically incoherent. About 15 minutes later police the rescue squad and ambulance officers arrived.

(3) Ms Wood , Mr Lord's girlfriend. She gave evidence which did not differ in any significant respect from that of her companion.

(4) Mr Haywood . He left the party at about 11 to 11.30 p.m. with his girlfriend, Ms Byrne. They came upon the accident scene, which Mr Haywood described. He said in effect that he was the first person to come on the scene, a matter that is common ground. Mr Haywood saw two children wandering around and three or four lying on the ground, lined up in a regular pattern. Mrs Vale was lying crumpled on the road a little further away. He saw Mr Vale in the driver's seat with the seat belt on. He was slumped over the steering wheel with one arm hanging down. Mr Haywood tried unsuccessfully to open the driver's door. He eventually got into the vehicle by the rear passenger door. He was unable to move Mr Vale who was breathing heavily but had no apparent injuries. Mr Haywood turned his attention to the children and Mrs Vale. He directed his companion Ms Byrne to go for help while he stayed with Mrs Vale. About 10 minutes later Mr Vale stumbled out of the motor vehicle. Mr Haywood did not see how he left it and neither he nor any other adult assisted Mr Vale from the vehicle. He described Mr Vale as incoherent and "drunk as a fowl" .

Mr Haywood's testimony was the only oral evidence called by the plaintiff arguably capable of supporting the plaintiff's case that Mr Vale was the driver.

(5) Mr George , an accident reconstruction expert. 22 The plaintiff called none of the occupants of the vehicle, apart from herself. As indicated, she had no recollection of the accident. 23 Various documents were tendered in the plaintiff's case. Several corroborated her inability to cast light on the circumstances of the accident. The one significant document was a detailed statement that had been given by Mr Vale to NRMA in June 1993. Counsel for the plaintiff called upon NRMA to produce it and then tendered it. Its admissibility against NRMA was objected to and it was admitted solely against Mr Vale and solely on the basis that it was an admission against Mr Vale (see Black 45, 122). No attempt was made then or later to have it admitted against NRMA on any basis (see Black 47, Red 49). Counsel for the plaintiff recognised that s69(3) of the Evidence Act 1995 would have presented difficulties in that regard, as it clearly did. The statement gives a detailed account of the accident and its antecedents. Mr Vale said he was driving when the car ran off the road. His wife had been driving earlier, but she was in his opinion obviously affected by alcohol. He made her stop in the pretext that he could go to the toilet and he took over the driving from her. Mr Vale stated that he "was tiddly, but I don't believe that I was over the limit". 24 Mr Vale called no witnesses in his case. He tendered three documents, including a blood alcohol analysis taken from the plaintiff showing a blood alcohol content of 0.081 (Appeal Tr p3). 25 NRMA called nine witnesses: (1) Senior Constable Pinel , who was called to the accident scene. He gave evidence of what he saw and of his subsequent investigations.

The most significant parts of his evidence were what was said to him by Mr Vale and Ms Stephenson when he interviewed them at Gulgong two days after the accident. What he then recorded in his police notebook was admitted as evidence of the truth of the matters represented by Mr Vale and Ms Stephenson. The admissibility of this evidence on this basis was the subject of rulings by the trial judge made in the light of two voir dire enquiries in which counsel for Mr Vale played an active and hitherto unaccustomed role. Her Honour's reasons have not being reproduced in the appeal record but no ground of appeal challenges this aspect of the trial.

The note relevant to Mr Vale stated: 4.40pm 16.11.92 To Malcolm Vale Q. Do you know how the accident happened. A. No. Q. Do you remember anything about the accident. A. No. Q. Do you remember getting into the car. A. No.

The note of Ms Stephenson's statement is set out below in the context of her evidence. Constable Pinel said that no one was in the vehicle when he came upon the accident scene. Mr Vale was lying in the drain or gutter and he appeared to be drunk and in pain.

A couple of months later the officer went to the Vales' property in an attempt to interview the plaintiff and he was told by Mr Vale to "fuck off" . Constable Pinel agreed under cross-examination by Mr Vale's counsel that in about December 1992 a solicitor representing Vale had told him that Mr Vale was driving at the time of the accident.

(3) Ms Stephenson , the lady sitting in the back seat of the vehicle with her four children at the time of the accident. She said that the plaintiff was driving when they left the party and that she, Ms Stephenson had fallen asleep along the way. After that, all she remembered was hearing the plaintiff sing out either "oh no" or "hang on" . She then "felt like a thump and then that was it" (Blue 109). Ms Stephenson said that she did not observe where the plaintiff or Mr Vale were seated at the time. After the car came to a stop she got out and attended to her four sons. They had to be unbelted from the back seat and assisted out of the car. Fortunately, none of the six young boys in the car was badly injured. At one stage Ms Stephenson left the scene to summon help. When she got back she saw each of the plaintiff and Mr Vale outside the car. Ms Stephenson agreed that she had spoken to Constable Pinel at Gulgong Police Station on 16 November 1992 but said that she had no recollection of the conversation. She then identified her signature in Constable Pinel's notebook.

Counsel for NRMA then sought leave to cross-examine the witness, relying on s66A(4) of the Act. Over the opposition of both the plaintiff and first defendant, leave was granted. Ms Stephenson's statement in the police notebook, given two days after the accident, and her statement given to the plaintiff's solicitor on 14 December 1992 were then tendered by NRMA and admitted without objection (Blue 124). The signed note included the following: Malcolm Vale was sitting in the front passenger seat and his wife Linda was driving …. We left the party and were heading to Malcolm's place. Malcolm was drunk. As we were driving along Malcolm leant over towards Linda. Linda pushed him back with her left arm. Malcolm put his hand up to brush Linda's arm away, a couple of seconds after that she yelled out, the car rolled over a number of times. The next thing I know we had stopped.

The signed statement made to the plaintiff's solicitors on 14 December 1992 included the following: We left the party during the evening and recall getting into the passengers side rear door of the Toyota Landcruiser. My children had all gone around to the other rear door and they also got into the back seat also. I made sure that they were all belted up and then we drove off with Linda driving and Malcolm in the front passengers seat. Their children were in the back section of the vehicle. I was sleepy before we left and I went to sleep whilst we were on our way home. The next thing that I remember is hearing a loud voice and think it was Lindas ( sic) . I remember the vehicle was stopped and I remember getting out of the passengers rear door. I cannot remember anyone being in the front when I woke up. I saw Justin getting out of the front passengers window and Douglas another of my sons helped me to undo my seat belt, I then got out also. Warwick was still in the vehicle so I lifted him out of his seatbelt. I saw Linda lying on the ground in front of the vehicle and I can recall seeing Malcolm crawling around, but I cannot place him in relation to Linda and the vehicle. I told him a couple of times to lie down. I recall walking down the road with one of my children and a lady in a car picked us up and took us to a house where the owner rang the police and ambulance. He then drove us back to the accident and I saw other people had stopped to help.

Thereafter Ms Stephenson was cross-examined at length by counsel for NRMA, then by counsel for Mr Vale, then by counsel for the plaintiff. Counsel for NRMA effectively put to her that her evidence in the two 1992 statements was to be preferred to her evidence at trial to the extent that the latter asserted that Ms Stephenson did not know that the plaintiff was driving when the vehicle crashed. (Ms Stephenson never resiled from her evidence that the plaintiff was driving when they left the party.)

Ms Stephenson agreed that three proceedings had been instituted in the District Court on her instructions, two in the names of her sons and one in her own right. In each case the plaintiff claimed damages for personal injuries suffered in the accident. The named defendant was the owner of the vehicle, the plaintiff's father. The pleading in each case asserted that the driver was Mrs Vale. On my reading of the transcript, Ms Stephenson could give no plausible reason why this allegation had been made on her apparent instructions. In the present trial she maintained the stance that she did not know whether the plaintiff was driving at the time of the accident.

Ms Stephenson also denied in cross-examination that she had seen Mr Vale crawling around before she went to get help (Blue 137). This was the effect of her statement given to the plaintiff's solicitors on 14 December 1992 (above). The issue was a vital one because it contradicted Mr Haywood's evidence, since he came on the scene after Ms Stephenson went off to summon help.

It was also put to Ms Stephenson by counsel for NRMA that she had told the doctor who attended the family at Gulgong Hospital on the night of the accident that the plaintiff was the driver (Blue 142). Ms Stephenson denied this.

When they came to cross-examine the witness, counsel for Mr Vale and the plaintiff adduced evidence as to her condition on 14 and 16 November 1992. This was relevant to the issue of the credibility of the statements damaging to the plaintiff's case that Ms Stephenson had made to Dr Caterson and Constable Pinel on those dates. She said that at the time of the accident she was intoxicated. However, when she was interviewed two days later at the police station she was sober and not suffering any condition likely to have impaired the credibility of any statement she then made.

(4) Ian Vale , the plaintiff's son, who was 6 at the time of the accident. Though cross-examined pursuant to leave granted in accordance with s66A(4) he gave no evidence about the accident that carried any weight for either side. In essence he had no present recollection of any detail. He was however confronted with the evidence of Mr Alford, Dr Caterson and Sister Salan (below) who gave evidence that Ian had indicated that his mother was driving.

(5) Geoffrey Vale , the plaintiff's son, who was 8 at the time of the accident. Like his brother, he was cross-examined pursuant to leave granted in accordance with s66A(4) and like his brother he maintained that he had no present recollection of the critical issue.

(6) Mr Alford , an ambulance officer who attended the accident scene. At that stage none of the occupants of the car were still in it. Mr Alford tried to assess Mr Vale's condition. He was drunk and abusive and told Mr Alford to "fuck off" . The critical part of Mr Alford's evidence was to the effect that Ian Vale told him that "Mum was driving the car" . This was during the journey in the ambulance to the hospital when Mr Alford was seeking to garner information about the nature of the injuries suffered by all of the occupants. He had asked Ian who was driving in the course of assessing for the Glasgow Coma Scale assessment (Blue 203).

Mr Alford had also questioned Mr Vale at the time and was told "I was a passenger in the car" (Blue 190). Mr Alford recorded the effect of this statement in his treatment report (Supplementary Blue 6). None of this evidence was objected to on the basis of its hearsay nature, nor was any question raised as to whether the procedural requirements of the Evidence Act had been complied with. Instead, issue was joined in cross-examination by counsel for Mr Vale and the plaintiff as to the nature and extent of Mr Vale's injury and the pain he was suffering at the time. Mr Alford was challenged as to the accuracy of his recall of what he had been told by Ian Vale and Mr Vale and he adhered to his testimony in this regard. He accepted that Mr Vale was drunk but said that he had quietened down in the ambulance (Blue 200).

(7) Dr Caterson , the sole permanent medical practitioner in Gulgong at the time of the accident who had been called out to the hospital shortly before midnight. Dr Caterson knew the members of the Vale and Stephenson families. She arranged for the plaintiff to be airlifted to Sydney. Dr Caterson spoke to Mr Vale at the hospital. He was rather rowdy at the time. She asked him whether he was driving. He swore at her and told that he wasn't the driver and that he wouldn't drive in his sort of condition. He smelt strongly of alcohol (Blue 209). The substance of this conversation was recorded in Dr Caterson's notes and these were admitted into evidence without objection (Supplementary Blue 7). She did not perform a blood alcohol test on Mr Vale because she accepted his assertion that he had not been the driver.

She also took a history from Ms Stephenson who told her that "Linda had been driving and Linda and Malcolm had been having an argument and Malcolm was pushing and pulling and their car was driven off the road" (Blue 210).

Dr Caterson also spoke to Ian Vale who told her that "Mummy was driving" .

Cross-examining counsel challenged Dr Caterson on her recollection. If anything, the challenge only strengthened the doctor's testimony (see Blue 219-222).

(8) Ms Wrisler , a nursing sister who treated the Vale family when they were brought to Gulgong hospital.

(9) Ms Salan, another nursing sister. Like Ms Wrisler, Ms Salan testified as to the medical condition of the members of the Vale family who were brought to the hospital injured on the night in question. However, Ms Salan also gave evidence that Ian Vale told her, during the ambulance ride, that "Mummy was driving and mummy and daddy were arguing, daddy was trying to stop mum from driving and we ran off the road" (Blue 230).

NRMA tendered various records corroborative of the testimony of the doctor, ambulance officer and nurses. It also tendered an insurance proposal that had been completed and signed by Mr Vale on 30 November 1992 (ie 16 days after the accident). In it Mr Vale said that he had had no traffic accidents in the previous five years.

The essential reasoning of the trial judge 26 The judge recognised that she was faced with a choice between two scenarios: either Mrs Vale or Mr Vale was driving a time of the accident. 27 She said that the first scenario was "supported by the assertions which the insurer claims were made" by Ms Stephenson, Ian Vale and Mr Vale immediately after or within the few days of the accident. (She included in this category the insurance proposal form completed by Mr Vale.) The way in which the issue was thus stated indicates that she implicitly accepted the strongly probative effect of the nearly contemporaneous statements of these three occupants of the vehicle. The critical issue for her was whether the three eye witnesses had actually said or written the statements attributed to them to the effect that the plaintiff was the driver. 28 The judge gave the following reasons for accepting the testimony of Senior Constable Pinel, Dr Caterson, Mr Alford and the two nursing sisters on this vital issue (s6.1(1)): In relation to this evidence I note the similarities in the statements attributed to Ms Stephenson and Ian Vale immediately after the accident to the effect that the motor vehicle overturned during an argument between Mrs Vale and Mr Vale. Ms Stephenson referred to Mr Vale's attempts to interfere with Mrs Vale while she was driving. Ian spoke to Mr Vale trying to stop Mrs Vale from driving. It is also supported by the evidence that Mr Vale was reported to have been so significantly affected by alcohol immediately after the accident that he spoke incoherently and abusively and was unsteady on his feet. The evidence called from Senior Constable Pinel, Dr Caterson, Mr Alford and Nursing Sisters Risel (sic) and Salan was given directly and, on my assessment, to the best of their ability. In particular, Dr Caterson was matter of fact and forthright in her evidence. They had nothing to gain in presenting their evidence as they did. There is no reason why I should reject them as witnesses of credit. In contrast, Ms Stephenson has provided a number of differing versions of the accident and its immediate aftermath. I do, of course, accept that the shock of the accident and of the injuries to herself and her children would have affected her powers of reason to some degree. However, she agreed that substantial parts of the statements which she made in November and December 1992 were accurate and, as already noted, there is a startling similarity between her version of what occurred and that of Ian Vale. In addition and in the ultimate, the most that she could say was that she did not know who was driving the motor vehicle at the time of the accident. It is possible that the trauma of the accident and its aftermath affected the capacity of Ian and Geoffrey Vale to recall details of 14 November 1992. The evidence does not indicate that they suffered head injuries or that they have been left with cognitive impairment as a consequence of the accident. There is no evidence before me of any psychological or psychiatric illness affecting either of these children which would convert this possibility into a probability. In making this assessment I have taken account of their ages at the time of the accident. 29 As to the alternative scenario her Honour said this (s6.1(2)): This scenario is said by those representing Mrs Vale to be supported by the evidence of Mr Haywood of Mr Vale's position in the driver's seat of the motor vehicle when he arrived at the scene of the accident. It is also said to be supported by the admissions of Mr Vale in his defence to the claim and in his statement. Again, I have no doubt that Mr Haywood, Mr Lord and Ms Wood were witnesses of credit. Indeed the insurer did not suggest that Mr Haywood was other than honest in giving his evidence. I have been asked to consider two possible explanations for Mr Haywood's discovery of Mr Vale in the driver's seat. Firstly, of course, that he was driving at the time of the accident. Secondly, that after the accident and after Ms Stephenson had left the scene, he recovered sufficiently to make his way back to the motor vehicle, intending to go for help. I have been asked to rationalise his denials that he was the driver of the motor vehicle on the night of the accident on the basis that, having consumed more alcohol than was appropriate, he wished to avoid the potential criminal consequences of the catastrophic accident which followed. 30 The judge then reminded herself that it was not her function to speculate. Her function was to decide on the balance of probabilities the conflicts which arose on the evidence. 31 Her Honour then addressed the issues stemming from the failure of any party to call Mr Vale as a witness. Each party claimed that the judge should draw inferences contrary to the interests of the others by reason of their failure to call him. It was common ground that Mr Vale was present at court during the course of the hearing. At the end of the day the judge declined to draw any inferences adverse to NRMA by reason of its decision not to call him. The correctness of this reasoning formed a significant part of the proceedings in this Court. 32 The judge also rejected a submission on behalf of Mr Vale to the effect that NRMA was obliged to have called Mr Vale as its witness in order to confront him with an allegation of fraud (s6.7) 33 The dispositive findings were expressed in the following terms: 7.1 I find that on the balance of probabilities Mrs Vale was driving the motor accident at the time of the accident for the following reasons: (1) Even if I were to accept that the consequences of the accident caused Ms Stephenson to lose her memory of it at a later date: (a) the similarity of her account of the argument between Mrs Vale and Mr Vale immediately prior to the accident and that of Ian Vale; and (b) her acknowledgment of the accuracy of substantially all of the balance of her statement; lead me to the conclusion that her version of events on the night of the accident is most probably accurate. (2) For the same reason I find that the account of the accident given by Ian Vale is accurate. In addition the complete absence of memory on the part of Ian and Geoffrey Vale is unsupported by evidence of their medical condition following the accident and is unexplained by evidence of the development of any later condition which might have affected them. (3) I have already commented that I accept as credible the evidence of the witnesses who provided medical attention after the accident. 7.2 I find that Mr Vale was not the driver of the motor vehicle for the following reasons: (1) Immediately after the accident, he forcefully denied that he was the driver. (2) I do not accept Ms Stephenson's claim that she intended to convey in her statement of 14 December 1992 that she saw Mr Vale crawling around on the ground only after she returned from seeking help. Not only does it not follow logically from the way in which the statement is set out, it is not supported by evidence of the persons who had by then reached the scene of the accident. They all stated that Mr Vale remained seated by the side of the road or against a tree. (3) The record of the injuries suffered by Mr Vale indicates that in addition to the fractured ribs he suffered abrasions and lacerations. The suggestion that Mr Vale suffered these injuries inside the motor vehicle is contrary to the evidence of Mr George and Mr Vaughan, who were called as experts on behalf of Mrs Vale and the insurer respectively. They agreed that there was no evidence that anyone suffered injury within the front part of the motor vehicle. The motor vehicle was clean of the evidence of blood, skin, hair or clothing that they would expect to find if such an injury had been suffered. (4) There is no evidence to support the proposition that Mr Vale's injuries were consistent with interaction with his seat belt or impact with the steering wheel. Mr George inspected the seat belts and could find no evidence of significant interaction. Dr Caterson rejected the proposition that Mr Vale's fractured ribs were consistent only with seat belt injury. (5) In respect of this scenario I am left to speculate on 3 things relating to Mr Vale: (a) whether he was in the motor vehicle at the time Mr Haywood arrived because he had been driving or for some other reason; (b) whether his initial denial that he was driving the motor vehicle was motivated by a desire to avoid the consequences of potential criminal charges; and (c) whether he suffered seat belt or steering wheel injury. I have already noted that it is not my function to speculate. 7.3 For these reasons I find for the defendants. 34 I make two preliminary comments about the reasoning process as disclosed in these concluding portions of the judgment. 35 First, there is no reference to the admissions by Mr Vale, formally in his pleading and informally in the statement admitted into evidence solely against him. It is not clear whether the judge considered the admissions to carry no weight in light of the totality of the evidence and the way the trial was conducted; or whether the judge viewed the admissions as entirely irrelevant to the case against NRMA and, for that reason, of no bearing in a trial that she said (s6.5) would have to result in a verdict against each defendant or against neither defendant. 36 Secondly, her Honour's remarks at s7. 2 (5) (par 33 above) appear to indicate that she accepted Mr Haywood's evidence that Mr Vale was in the vehicle when Mr Haywood arrived on the scene. If so, this approach corresponds with an earlier finding that Mr Haywood was a witness of credit (s6.1(2), see passage set out at par 29 above). This in turn raises the question whether her Honour was correct to have concluded that "the evidence presented on behalf of Mrs Vale does not support an inference that Mr Vale was driving the motor vehicle at the time of the accident. Therefore, the decision not to call him cannot be relied upon to draw any inference adverse to the insurer" (s6.6). I shall address this when I deal with the Jones v Dunkel issue. 37 The statements of Mr Vale and Ms Stephenson were highly relevant to the central issue, if treated (as they were at trial) as evidence of the fact. As recorded in the police note book, Mr Vale told Constable Pinel that he did not know how the accident happened, that he remembered nothing about the accident and that he did not remember getting into the car. Ms Stephenson's early statements were very damaging to the plaintiff's case that Mr Vale was the driver.

The general attack on the verdict 38 Despite the precision with which the notice of appeal was framed, some of the appellant's attack on the verdict suggested that it was not properly open to the trial judge on the totality of the evidence to conclude that the plaintiff had failed to establish that her husband was the driver. 39 I firmly disagree. To a substantial extent, the plaintiff's case depended upon the trial judge's assessment of the credibility of the witnesses whom she saw. The plaintiff's positive case rested significantly upon the evidence of Ms Stephenson, whose credibility was challenged extensively and (in my view) effectively, particularly in light of inconsistencies between her early statements and her evidence at the trial. Conversely, the defence case advanced through the witnesses called by NRMA depended to a large degree upon the judge being satisfied (as she clearly was) that they were witnesses of credibility and accuracy in recall. The police officer, the ambulance officer and the doctor were vital witnesses to establish the accuracy of the written and oral evidence as to the statements from Mr Vale, Ms Stephenson and (to a lesser degree) Ian Vale that in the final analysis were very damaging to the plaintiff's case. The credibility of their evidence was also important in the weighing of the attempt by both the plaintiff and Mr Vale to establish that the representations by the three eye-witnesses were distorted by the injuries they suffered in the accident itself. I reject their submissions that this aspect of credibility was overlooked.

Mr Haywood's evidence 40 In her second ground of appeal the plaintiff contends that the trial judge should not have concluded that it was speculation whether the presence of Mr Vale in the vehicle when discovered by Mr Haywood was due to the fact that Mr Vale had been driving at the time of the collision. 41 The substance of Mr Haywood's evidence is set out above (par 21). Judge Sidis had no doubt that he was a witness of credit and she observed that NRMA had not suggested that he was other than honest in giving his evidence (s6.1(2), passage set out at par 29 above). The passages in which her Honour adverted to the impact of Mr Haywood's evidence (ss6.1(2) and 7.2(5)(a)) have also been set out above. 42 The plaintiff's complaint is that the primary judge regarded Mr Haywood's evidence as intractably neutral. According to the plaintiff, the judge should have regarded the evidence that the drunk and injured Mr Vale was found in the driver's seat by Mr Haywood, who was unable to get him out of the car by opening the driver's door from the outside, as some evidence that Mr Vale was the driver at the time of the accident. If it was evidence of that fact, then (together with Mr Vale's admission) it ought to have been placed on the scales and weighed against the totality of the other relevant evidence. Instead, the trial judge effectively sidelined Mr Haywood's evidence on the basis that it was pure speculation as to whether Mr Vale was in the vehicle when Mr Haywood arrived because he had been the driver or for some other reason. 43 Were the decision mine, based on the recorded evidence, I would have been inclined to treat Mr Haywood's evidence as carrying some weight, but not much. But I do not have the advantage enjoyed by the trial judge and I am not persuaded that she erred in this approach to Mr Haywood's evidence. In any event, the reason why I would give this evidence "not much weight" is relevant to an alternative analysis which also leads to rejection of this ground of appeal. 44 My reasons for thinking that Mr Haywood's evidence carried little or no weight in the final analysis are based upon (a) the absence of evidence as to how long elapsed between the accident and the time when Mr Haywood came upon the scene; (b) Ms Stephenson's early statements (accepted by the trial judge) which in effect had Mr Vale outside the car before Mr Haywood came on the scene; (c) the evidence indicating Mr Vale's capacity to move about, unaided; and (d) the totality of the evidence that locates Mr Vale in the passenger seat at the time of the accident. And, unless the plaintiff's reliance upon Mr Haywood's evidence was itself pure speculation, it was also open to her Honour to observe that Mr Vale might have got into the car after both he and his wife had been thrown out of it and when (Ms Stephenson having gone off for help) he realised his wife's need for urgent assistance. He may then have found himself unable to drive because of his injuries and/or drunkenness (cf s6.1 of the judgment).

Other factual challenges 45 Another specific complaint by the plaintiff (ground 6) challenges one of the reasons given in support of the conclusion that Mr Vale was not the driver. In the passage already set out (s7.2(3), see par 33 above) the judge said that the suggestion that Mr Vale suffered his injuries inside the motor vehicle was contrary to the evidence of the two experts, Mr George and Mr Vaughan. 46 The plaintiff points to a statement by Mr Vaughan, NRMA's expert, which accepts that Mr Vale may have been injured within the motor vehicle without being thrown from it (Blue 160). In his oral evidence Mr Vaughan also accepted as a "possibility" that Mr Vale's fractured ribs were consistent with having collided with the steering wheel (Black 99). 47 Each expert had noted the lack of any sign of injury mechanism (ie sign of "bodily or clothing transfer, some material exchange whether it be skin, hair, blood or clothing": Black 79) inside of the car (Black 79, 83, 84, 102). Each expert conceded that injury could have been suffered within the vehicle, but said that there was no evidence of injury mechanism in relation to the plaintiff's serious head injuries. 48 The plaintiff submits that this evidence was only intended to have relevance in the context of the head injuries suffered by the plaintiff. There is some force in this, especially when Mr Vaughan's evidence is examined closely. However, the criticism loses much of its weight when it is seen that there was unchallenged evidence that Mr Vale's injuries recorded on his admission to hospital included "blood stained face" (Black 226). This meant that some probative value remained with the combined evidence of the experts based upon the absence of blood stains within the vehicle. 49 More importantly, this criticism does not really advance a positive case that Mr Vale was the driver. At most, it leaves the plaintiff's case without positive support from the testimony of the experts. The highest the evidence of the experts rose was to accept (on the evidence before them) the possibility that Mr Vale's injuries occurred either within the car or outside the car. 50 The plaintiff also complains of error in the judge's statement that there was no evidence to support the proposition that Mr Vale's injuries were consistent with interaction with his seat belt or impact with the steering wheel (Judgment s7.2(4), passage quoted at par 33 above). In fact, Mr Vaughan accepted as "a possibility" that Mr Vale suffered his injuries, including fractured ribs "consistent with … collision with the steering wheel" (Black 99). Dr Caterson also accepted as "one of the consistencies" that the rib fractures were consistent with an impact with the steering wheel (Black 218). Again, this complaint is valid, but it does little to advance a positive case for the plaintiff. 51 The removal of these two props supporting the conclusion that Ms Vale was the driver does not persuade me that the judge erred in her ultimate conclusion. Much remained and much of it depended on the judge's favourable assessment of witnesses whom she observed. 52 At the end of the day the evidence of the experts cast no probative weight in favour of the plaintiff's case. Her Honour was correct in her earlier analysis relating to the expert evidence when she said that it was of little assistance in determining the identity of the driver (s3.1). To the extent that they are made good, some of the appellant's criticisms of the reasoning in s7.2 of the judgment are sound and, to that extent, some bases upon which her Honour found as a positive fact that Mr Vale was not the driver are withdrawn. However, other substantial reasons in s7 are left standing. More importantly, there remained weighty reasons why the plaintiff did not sustain the onus which she bore. 53 The appellant's just criticisms of portion of s7.2 of the judgment do not rise higher than establishing that some of the reasons for concluding that Mr Vale was the driver do not find support in the expert evidence. None of the appellant's criticisms in this regard lead to the scales being weighed down in her favour. 54 Another of the specific challenges (ground 3) is the contention that the trial judge erred in failing to give any or any proper weight to Ms Stephenson's state at the time of the accident and subsequently, including her state of sobriety; and the emotional state and youth of both Geoffrey and Ian Vale at the time of the collision. There is no substance in this ground of appeal. It was not incumbent on her Honour to advert to each and every integer of her consideration in this regard. The medical witnesses, especially Dr Caterson, had been tested in cross-examination on this very issue. Furthermore, there was no medical basis for suggesting that Ms Stephenson's statement to Constable Pinel on 16 November and to the plaintiff's solicitors on 14 December were affected by her injuries or any medication she was taking. 55 None of the matters relied upon by the appellant in support of this ground of appeal establish that the trial judge failed to make proper use of the advantage which she had in assessing the credibility of the witnesses, including the credibility of their evidence that denied that the vital representations from the eye-witnesses were coloured by injury or lack of sobriety.

Section 66A of the motor accidents act 1988 56 A proper understanding of this provision is relevant to the remaining issues in the appeal. 57 Section 66A provides: 66A Joinder of insurer where false claim alleged

(1) Where: (a) court proceedings have been commenced against a person in respect of a claim; and (b) the person's insurer has given the plaintiff particulars alleging that the claim has not been made in good faith, the insurer may apply to the court to be joined as a party to the proceedings. (2) If the court gives the insurer leave to be joined as a party, the insurer may call as a witness any person able to give evidence relating to the occurrence out of which the claim arose or evidence of other matters relating to the claim, including a person who was, at the time of the occurrence, the owner or the driver of the vehicle. (3) The insurer may examine the witness as to the occurrence out of which the claim arose and may also, with the leave of the court, examine the witness as to: (a) any other claim in which the witness was involved either as a claimant, a witness or an owner or driver of the motor vehicle, and (b) the credibility of the witness. (4) If the court gives leave to do so, the insurer may:

(a) cross-examine the witness, and (b) lead other evidence to refute the evidence given by the witness, as to any or all of the matters as to which the insurer might have examined the witness under subsection (3). (5) Any right to examine or cross examine a witness arising under this section is additional to and not in diminution of any right to examine or cross-examine the person arising under any other law. (6) This section applies despite section 53 of the Evidence Act 1898. (7) Subsections (3)-(6) apply to: (a) the Ministerial Corporation as defendant in relation to claims referred to in section 147B, and (b) a licensed insurer as defendant in relation to any claim, in the same way as those subsections apply to a licensed insurer who is granted leave to be joined as a party. (8) This section applies to court proceedings commenced before or after the date of commencement of this section.

58 The section was introduced in 1989 and described in the following terms in the minister's second reading speech: Anomalies with respect to the prosecution of fraudulent claims have been removed, and a new provision will allow insurers to actively fight in court cases suspected as having been fraudulently presented. I want to make it clear to the community that I will encourage every step to identify and defeat fraudulent claims - the days of the staged accident are now over. (Mr Dowd, Attorney General, New South Wales Parliamentary Debates, Legislative Assembly, 9 May 1989 p7707)

59 In Government Insurance Office of New South Wales v Ivanoff (1991) 22 NSWLR 368 at 270-1 Mahoney JA described the function of s66A in the following terms: The difficulty to which s66A is directed arises, inter alia, because of the relationship which exists or may exist between a third party insurer and its insured and the technical difficulties involved where, proceedings having been brought against or in respect of the actions of the insured, the third party insurer desires to establish that the insured has not acted bona fide in relation to the matter. Such difficulties may arise in different ways. Thus, they may arise where the insured was the driver of the vehicle said to be at fault and he has been sued as a defendant. The third party insurer will ordinarily have little difficulty in assuming control of the conduct of a proceeding against him. But it may desire to suggest in the proceeding that, for example, no accident took place or that the accident which did occur occurred because of an arrangement between the plaintiff and the insured driver. In order to pursue such a contention effectively, it may be necessary for the third party insurer to call its insured to give evidence and to deal with him on the basis that what he had said in evidence is untrue. If the third party insurer conducts the proceedings nominally on behalf of its insured as defendant there will be difficulties in it so doing. And, if it is necessary for the third party insurer to call the insured as a witness, its right to cross-examine him will or may be significantly restricted. 60 If an order is made pursuant to subsection (1) the insurer becomes a party to the proceedings. This arms it with powers to call witnesses and to examine them on a defined though extensive range of matters (subsections (2) and (3)). 61 Subject to the leave of the court, the insurer joined as a party also acquires the power to examine or cross-examine the witness it calls and lead other evidence to refute the evidence given by the witness as to any or all of the matters as to which the insurer might have examined the witness under subsection (3) (subsection 4)). This conditional power to cross-examine and lead refuting evidence is more limited than the power to call a witness, because it is confined to the matters referred to in subsection (3), which is narrower in its scope than subsection (2). 62 The powers conferred by the section apply according to their terms and are not to be read down by reference to s53 of the Evidence Act 1898, which was in force in 1989, and which limited the power of a party to discredit its own witness (see subsection (6)). 63 However, subsection(4) does not exhaust the insurer's rights to examine or cross-examine witnesses. Subsection (5) preserves such rights as arise under "any other law". This provision is clearly ambulatory in its effect. Accordingly, the procedural and evidentiary powers conferred on "a party" by the Evidence Act 1995 may be invoked by the insurer who has obtained an order pursuant to subsection (1). 64 In my view, it is clear that s66A is not intended to affect the substantive rights at issue in the proceedings to which the insurer is joined as a party. The section is silent as to substantive matters. The powers conferred by the section, though extensive, do not purport to render the insurer a defendant. Indeed subsection (7) implicitly recognises that the insurer that obtains leave to be joined as a party to existing proceedings does not thereby become a defendant. If one were searching for an analogy, the insurer that is not already a defendant enters the proceedings as an intervener, armed with the powers expressly conferred or recognised in the section. 65 One power that is not spelt out, but clearly implicit, is the power to make submissions as to the ultimate issue. The procedural powers given to the insurer are pointless if they cannot be followed up by explanation or argument. Similarly, there would be power to appeal and to insist upon being party to any appeal in which the insurer had an obvious interest (cf Insurance Exchange of Australia v Dooley (2000) 50 NSWLR 222). 66 In a different context, the appellant submitted that s66A did not alter the plaintiff's burden of proof in a motor accident claim. Rather, it was said to be a facilitative provision allowing for the insurer to participate in the case by the calling of witnesses etc (Appellant's submissions s5). I accept that submission and that general description of s66A's role. 67 The order made by Master Malpass on 12 April 1995 added NRMA as a second defendant but left Mr Vale as first defendant. NRMA undertook to pay Mr Vale's legal costs of the ongoing litigation, subject to certain conditions. It was clearly contemplated that Mr Vale would be free to participate in the litigation as he saw fit. 68 In light of these considerations, it was appropriate for NRMA to file a defence indicating its stance in the litigation (cf District Court Rules, Pt 9 r9(2)). 69 However, I consider that the primary judge was in error in suggesting that a verdict would have been entered against both defendants had the plaintiff succeeded (s6.5). The insurer's party status derived solely from s66A did not compel or authorise this. The scheme of the Motor Accidents Act 1988 (unlike that prevailing under s14 of the Motor Vehicles (Third Party Insurance) Act 1942 for pre-1 July 1987 accidents) provides for the claim to be made against the insured, not the insurer, albeit that the insurer has statutory rights and duties in the litigation, including the right to conduct proceedings in the name of the insured (s47) and the right to seek to become an additional party (s66A). Section 66A(7) recognises that an insurer need not be a defendant in relation to a claim. 70 The only power under the Act to proceed directly against the insurer depends on the insured being dead or unable to be insured (s54). 71 Section 66A is to be contrasted with s125a of the Motor Vehicles Act 1959 (SA) which provides in effect that the insurer that is joined ousts the insured as a party for relevant purposes (see O'Loughlin v Walker (1986) 44 SASR 52 at 55). 72 The appellant's first ground of appeal, which contends that the trial judge erred in finding that she had to prove her case against NRMA, should therefore be upheld. 73 However, the error went nowhere. NRMA was entitled to stand between the plaintiff and Mr Vale in opposition to a judgment against Mr Vale which would in the circumstances have triggered an automatic right of indemnity under the third-party policy. Section 66A armed NRMA with the power to prevent Mr Vale's willingness to suffer judgment against him becoming an instrument of fraud or (looking at the matter in the way the trial judge did - albeit erroneously) triggering the scandal of inconsistent judgments. The distinction between the role of Mr Vale as the defendant facing judgment and that of NRMA as the intervening defendant can not be used to undercut the statutory role of the insurer that had become a party to the proceedings. The very purpose of that role was to enable it to exercise virtually the full panoply of forensic powers directed to showing that Mr Vale was not liable. 74 This throws up the issue as to the evidentiary status of Mr Vale's out of court admission.

Evidentiary status of Mr Vale's out of court admission of liability 75 One issue raised by the plaintiff on the appeal concerns the trial judge's treatment of Mr Vale's out of court admission of liability in the detailed statement given by him to NRMA in June 1993. As indicated, the plaintiff required this document to be produced by NRMA and then tendered it. Counsel for NRMA objected and it was admitted solely against Mr Vale. 76 The trial judge (relying on s83 of the Evidence Act) treated the admission as irrelevant to the claim against the insurer (s5.9); and, having done so, possibly ignored it altogether because she considered it was necessary for the plaintiff to prove her case against NRMA as well as Mr Vale (see par 35 above). 77 On appeal, the plaintiff submits that s83 had no application. She further submits that the judge erred in not giving any weight to her husband's admission. 78 Section 81(1) of the Evidence Act provides that the hearsay rule does not apply to evidence of an admission. Section 83 qualifies this eclipsing of the hearsay rule by providing: 83 Exclusion of evidence of admissions as against third parties (1) Section 81 does not prevent the application of the hearsay rule or the opinion rule to evidence of an admission in respect of the case of a third party. (2) The evidence may be used in respect of the case of a third party if that party consents. (3) Consent cannot be given in respect of part only of the evidence. (4) In this section: "third party" means a party to the proceeding concerned, other than the party who: (a) made the admission; or (b) adduced the evidence.

79 As I have mentioned, NRMA became a party as an intervening defendant and not as a defendant against which a claim was made. Section 66A did not arm NRMA, as an intervening defendant, with the power to prevent the proper admission of evidence against Mr Vale, who remained a party; as distinct from the power to challenge the weight of such evidence in argument. Insofar as Mr Vale's consent or non-objection to the admission of an item of evidence was a relevant consideration, he through his counsel was the party entitled to object or waive rights. NRMA would have been in a different position if it had adopted the traditional role of standing in Mr Vale's shoes (cf s 47 of the Act), but it chose to reach for the alternative procedural remedy of becoming a separate intervening party in its own right, pursuant to s 66A. 80 The admissibility of the admission was therefore to be determined solely by reference to whether it was admissible against Mr Vale (he being the party against whom the plaintiff was making a claim). As there was no lis between the plaintiff and NRMA, the admission was indeed irrelevant against NRMA. But that was because no claim was made against NRMA, not because of s 83 of the Evidence Act. 81 As an intervening defendant, NRMA had standing to contest the admissibility of Mr Vale's admission. But it could do so only on the basis that the admission was not admissible against Mr Vale. As explained, no issue arose as to whether it was admissible against NRMA. 82 This distinction between the relative roles of Mr Vale and NRMA does not seem to have been appreciated at the trial. Once the parties accepted that Mr Vale's statement contained an admission (as they appear to have done) it cannot be said that the trial judge erred in admitting it against him. 83 In this regard, when Mr Vale made the statement it was clear that his interest lay with his seriously injured wife. 84 Whether or not this precluded the document being treated as an admission against Mr Vale's interest by the plaintiff (as NRMA suggested on appeal) was a point that was never taken at trial. The definition of "admission" in the Dictionary is: … a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding. According to Phipson on Evidence 15th ed s28-03, statements made by a party are receivable in evidence against him even though, when made, they were in fact in his interest (see also Stone & Wells, Evidence: Its History and Policies p329). The point is an interesting one but I need not tarry further over it in light of non-objection at trial to the admission going in against Mr Vale. 85 As an intervening defendant, NRMA had standing to argue that the weight to be attributed to Mr Vale's submission was minimal. On appeal that submission was made; in my opinion, it has to be upheld. In light of Mr Vale's interest at the time of the admission, the body of contrary evidence (including Mr Vale's statement to the police and others within 48 hours after the accident) and the failure of the plaintiff (or Mr Vale) to call him to the witness box, his out of court admission carried little or no weight. 86 In relying on s 83 of the Evidence Act as a ground for treating Mr Vale's admission as irrelevant to the claim against the insurer, the trial judge erred. But, as the weight to be attributed to Mr Vale's admission is minimal, no substantial wrong or miscarriage occurred in consequence of the practical failure of the judge to put the statement into the evidentiary scales against the relevant defendant, ie Mr Vale himself (cf Supreme Court Rules, Pt 51 r 23).

Other evidentiary issues in the appeal 87 In ground 4 of the notice of appeal the appellant argues that the trial judge erred in allowing NRMA to lead evidence from Ms Risler, Mr Alford, Ms Salan and Dr Caterson in circumstances where there was no inconsistency between the alleged previous statements of Geoffrey and Ian Vale and the evidence given by those two young men at trial. 88 This challenge mistakes the basis upon which the evidence of the nurses, the ambulance officer and the doctor was tendered and admitted. 89 Exercising its rights under s66A of the Act, the insurer called Geoffrey and Ian Vale. Given their ages at the time of the accident and the period that had elapsed between accident and trial, it is hardly surprising that neither witness contributed any substantial evidence in chief. In accordance with s66A(4), NRMA's counsel was given leave to cross-examine each witness and to lead other evidence to refute his evidence. The refuting evidence, with which Ian Vale was fairly confronted in cross-examination fell within the hearsay rule, but it was first-hand hearsay admissible in accordance with s64(3) of the Evidence Act. It was not sought to be made admissible by virtue of any status as a prior inconsistent statement (cf ground 4). (I would reject NRMA's submission that s66A(4)(b) of the Motor Accidents Act provided the basis for admission of otherwise inadmissible material.) 90 Since the statements to the nurse, the doctor and the ambulance officer were in evidence or about to go into evidence it was only fair to confront the witnesses with them.

Jones v Dunkel issue 91 The appellant submitted that the powers conferred on an insurer by s66A lead to a reworking of the principles in Jones v Dunkel, or at least in their application to trials conducted in the manner of the present trial. That general submission has already been rejected by this Court (see Ebejer v Wilkinson Court of Appeal, unreported, 12 June 1997). The power to call and examine witnesses which is possessed by any party (including an intervener: see O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 128 ALR 718) contributes nothing to the analysis of whether a Jones v Dunkel inference should be drawn against the interests of a particular party who declined to call a particular witness in particular proceedings. 92 Once this is accepted, the challenge to the trial judge's refusal to draw an inference in the plaintiff's favour by reason of NRMA's failure to call Mr Vale falls away. Jones v Dunkel was not overlooked: it was simply not applied in the plaintiff's favour. The judge did not err in this regard. Mr Vale was in the plaintiff's camp and NRMA had a satisfactory explanation for its failure to call him (cf Payne v Parker [1976] 1 NSWLR 191 at 197, 202; Spence v Demasi (1988) 48 SASR 536 at 548; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 343; Fabre v Arenales (1992) 27 NSWLR 437). The goddess of justice may be blindfolded, but she is not blind to the realities of trial tactics (see D A Ipp, "Judicial impartiality and judicial neutrality: Is there a difference?" (2000) Australian Bar Review 212 at pp219-220). 93 In concluding that no error occurred as regards Jones v Dunkel, I have not overlooked the fact that her Honour's reason for not drawing an inference "adverse to the insurer" (s6.6) was that the evidence presented on behalf of the plaintiff did not support an inference that Mr Vale was the driver. It will be apparent from what I have already written that I have two difficulties with this proposition: first, it ignores the fact that there was evidence against the relevant party, ie Mr Vale (that evidence being his own admission); secondly, I have reservations as to whether Mr Haywood's observations can be completely sidelined. However, the judge's decision not to draw an adverse inference "adverse to the insurer" in its role as the effective defender of Mr Vale's legal rights was not itself in error - for the alternative reasons stated in the preceding paragraph. 94 It is unnecessary to address the distinct possibility that a Jones v Dunkel inference should have been drawn against the plaintiff. The trial judge did not apply the principle either way. I am content to proceed in like manner. 95 It was not incumbent on NRMA to call Mr Vale as its witness in order to confront him (and through him the plaintiff) with a challenge to the plaintiff's case (cf ground 7 of the appeal). No one at trial was in any doubt about the tactics surrounding the question confronting each of the three parties as to whether or not to call Mr Vale. Once again, the powers conferred on an insurer by s66A do not translate automatically into correlative duties. 96 The appeal should be dismissed. NRMA should pay Mr Vale's costs in accordance with the undertaking given to Master Malpass. NRMA's costs including those payable to Mr Vale are to be paid by the appellant. 97 DAVIES AJA: I have had an opportunity to read the reasons for judgment prepared by the President. I agree with them but, having regard to the submissions put with respect to the procedures adopted, I should add some words of my own. 98 In accordance with Schedule 1 to the Motor Accidents Act, 1988 ("the Act"), a third-party insurance policy relevantly provides:- "The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle: (a) if the motor vehicle is not one to which paragraph (b) applies - in the use or operation of the vehicle in any part of the Commonwealth …" 99 Section 17 of the Act provides:- "A licensed insurer is, despite any other law, liable to indemnify the insured persons under a third-party policy of the insurer in respect of any liability which the policy purports to cover." 100 Section 25(1) of the Act provides:- "(1) If a judgment obtained in any court relating to liability in respect of the death of or injury to a person caused by the fault of the owner or driver of an insured motor vehicle in the use or operation of the vehicle is not satisfied in full within 30 days after the judgment is entered, the court shall, on the application of the judgment creditor, direct that the judgment be entered against the licensed insurer of the vehicle." 101 Notwithstanding the terms of s 25(1), I would not read the Act as intending that an insurer is unable to put in issue the question whether an accident occurred in circumstances which activated the third-party policy. 102 The appropriate procedural means to do so is under s 66A of the Act which provides that, where court proceedings have been commenced against a person in respect of a claim under the Act and the insurer has given particulars alleging that the claim has not been made in good faith, the insurer may apply to the court to be joined as a party to the proceedings. Section 66A provides that, if the court gives leave to the insurer to be joined, the insurer may call witnesses, may examine witnesses and, with the leave of the court, may cross-examine the witnesses. 103 In the present case, the insurer applied and was joined as a party under s 66A. The procedures adopted on that joinder were adequate to raise, for the determination of the Court, the issue whether the accident occurred in circumstances which activated the third-party insurance policy. 104 Linda Ann Vale, the plaintiff below, sued her husband, Malcolm Geoffrey Vale, the first defendant below, alleging that she had suffered injury due to his negligent driving of a motor vehicle. Mr Vale was separately represented in the proceedings. He admitted liability in his statement of defence. The insurer, NRMA Insurance Limited ("NRMA"), filed a statement of defence in which it denied that Mr Vale was the driver of the vehicle and in which it alleged that Mrs Vale was the driver. 105 The issue raised in the trial, which was a trial as to liability only, was the issue raised in the NRMA's defence. If that defence succeeded, Mrs Vale's claim should have been dismissed. If the defence failed, judgment should have been entered against Mr Vale. 106 As so structured, the proceedings were effective to raise the issue in which Mrs Vale, Mr Vale and the NRMA all had an interest. In the trial on that issue, Mr Vale's interests were coincident with those of Mrs Vale. Both propounded the case that the accident occurred in circumstances in which Mr Vale was the negligent driver. The NRMA contended the opposite, namely, that Mrs Vale was the driver. 107 The case put by both Mr and Mrs Vale was weak for neither called as a witness any person, other than Mrs Vale, who was present in the car at the time of the accident. Mrs Vale was unable to remember the accident. Mr Vale was not called to give evidence, notwithstanding that other evidence established that, although drunk, or appearing to be so, he was conscious after the accident. 108 It was submitted in the appeal that a finding adverse to the NRMA should have been made because the NRMA failed to call Mr Vale. Jones v Dunkel (1959) 101 CLR 298 was referred to. However, the issue that was litigated was an issue in which Mr and Mrs Vale put one case while the NRMA put another. The NRMA could not be expected to call Mr Vale, another party, who was putting the opposite contention. 109 In the trial, the plaintiff's case, therefore, proceeded without the plaintiff having called either Mr Vale or Ms Stephenson or any of the six children who were in the motor vehicle at the time. It is not surprising that the trial Judge placed considerable weight upon the evidence adduced on behalf of the NRMA including contemporary statements made shortly after the accident to an ambulance officer, a medical practitioner, two nursing sisters and a police officer. There was a sufficient basis in those contemporary statements, which were admissible under s 64(3) of the Evidence Act, 1995, so far as the statements of Ms Stephenson and the children were concerned, and as admissions, so far as Mr Vale's statements were concerned, to justify the finding which the trial Judge made that Mrs Vale was the driver of the vehicle when the accident occurred. The probabilities of the case also supported that conclusion. 110 In my opinion, the findings of the trial Judge were well based on the evidence before her. 111 I agree with the orders proposed by the President. 112 IPP AJA: I agree with Mason P. ***********

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