Supreme Court New South Wales

• Medium Neutral Citation: Layton Smith bht Troy Smith v NRMA Insurance Limited [2014] NSWSC 1518
• Hearing dates: 24 - 28 March 2014
• Decision date: 03 November 2014
• Jurisdiction: Common Law
• Before: Button J

Decision

(1) Judgment for the defendant.

(2) Unless either party contacts my Associate within one week of today with regard to conducting an argument about costs, the plaintiff must pay the costs of the defendant.

• Catchwords: TORTS - negligence - separate determination of liability - in light of joint position of parties no discussion of legal principle required - whether plaintiff can establish on the balance of probabilities that the driver of a vehicle that crossed into oncoming traffic and collided with the plaintiff's vehicle was conscious and in control of his vehicle at the time of the collision
• Legislation Cited: Evidence Act 1995 (NSW), s 53
• Category: Principal judgment
• Parties: Layton Smith (Plaintiff); NRMA Insurance Limited (Defendant)
• Representation: Counsel: DA Wheelahan QC (Plaintiff); PJ Frame (Plaintiff); J Masur (Plaintiff); RR Stitt QC (Defendant); B Kelleher (Defendant); Solicitors: Lamrocks Solicitors (Plaintiff); Sparke Helmore Lawyers (Defendant)
• File Number(s): 2007/20176

Judgment

1 On Tuesday 7 September 2004, Layton Smith (the plaintiff), then almost two years of age, was a rear seat passenger in a car driven by his father, Mr Troy Smith. The car was travelling in a westerly direction along the Great Western Highway at Mt Druitt, having just moved off from being stopped at a red light. Mr Allen Messruther was in the driver's seat of a van travelling in the opposite direction along the Great Western Highway. At the intersection with Carlisle Avenue, Mr Messruther's van crossed onto the incorrect side of the road, and collided with Mr Smith's car. Tragically, the plaintiff suffered catastrophic injuries as a result of the collision. Mr Messruther was pronounced dead at the scene of the accident as a result of cardiac arrhythmia leading to cardiac arrest (in short, a heart attack).

2 The plaintiff now brings proceedings for personal injury damages against NRMA Insurance Limited (the defendant), the insurers of Mr Messruther. I am to determine liability as a separate issue.

3 The parties, each of whom was represented by Queen's Counsel, agreed that it was not necessary for me to refer to any statute or to common law principles of negligence to determine that question. That is because it was agreed that, if Mr Messruther was conscious and in control of the van at the time of the collision, he was undoubtedly negligent. If he was unconscious or otherwise very incapacitated, he was not negligent. In short, the dispute between the parties centres on a question of fact: when did Mr Messruther suffer the heart attack, before the collision, or as a result of the collision?

4 As for the onus and standard of proof, by the end of the hearing it was agreed between the parties that it was incumbent upon the plaintiff to prove on the balance of probabilities that Mr Messruther was conscious and in control of the van at the time of the collision.

5 In short, if I am satisfied that Mr Messruther was conscious and driving, the plaintiff must succeed. If I am not so satisfied, negligence has not been established, and the plaintiff must fail.

The scene - undisputed evidence

6 Exhibits A, L, N and O establish the following. At the time of the accident, the Great Western Highway consisted of three through lanes of traffic each way travelling east and west, separated by a raised median strip. As one travelled along the Great Western Highway in an easterly direction some hundreds of metres from the west of the intersection, one crossed Roper Road, John Hines Avenue, and Carlisle Avenue in that order. As one travelled in the same direction between the intersection with John Hines Avenue and the intersection with Carlisle Avenue, the Great Western Highway gently curved to the right (that is, to the south).

7 There were traffic lights at the intersection of the Great Western Highway and Carlisle Avenue. At this intersection there were also additional right hand turn lanes on both sides of the road, closest to the median strip. Travelling in an easterly direction, there were three through lanes and one right hand turn lane. Travelling in a westerly direction there were three through lanes and two right hand turn lanes.

8 In this judgment, I shall refer to the kerbside lane on each side of the road as "lane one", the adjacent lane as "lane two", and so on.

The collision - undisputed evidence

9 At approximately 12 midday on 7 September 2014, the plaintiff was restrained in a booster seat behind the driver's seat of a Mitsubishi Verada sedan driven by his father, Mr Smith. The plaintiff's mother, Mrs Tracey Smith, was seated in the front passenger seat. The Smiths were driving home to Claremont Meadows in a westerly direction along the Great Western Highway. The Smiths' sedan stopped at the traffic lights at the intersection of Carlisle Avenue behind approximately five cars. The sedan was in lane two or three from the kerb.

10 Mr Anthony Sampson was also driving in a westerly direction along the Great Western Highway. He was driving a Kenworth prime mover with an unladen trailer attached. He stopped at the Carlisle Avenue intersection traffic lights in lane two behind approximately 10 cars. Accordingly, his prime mover was a little distance behind the Smiths' sedan whilst both vehicles waited at the Carlisle Avenue traffic lights.

11 Meanwhile, Mr Messruther was driving his van in an easterly direction along the Great Western Highway.

12 Ms Louise Graham was also driving in an easterly direction along the Great Western Highway in a VT Commodore. Her partner, Mr Shannon Graham, was in the front passenger seat. The Grahams intended to turn left (that is, to the north) onto Carlisle Avenue towards Mt Druitt Markettown.

13 The Grahams' car stopped in lane one at the traffic lights at the intersection of the Great Western Highway and Roper Road, which is approximately 600 metres west of the intersection with Carlisle Avenue. Mr Messruther's van was stopped next to the Grahams' car in lane two. Both vehicles were first in line at the traffic lights.

14 When the traffic light turned green, Mr Messruther's van accelerated and overtook the Grahams' car. Somewhere in the vicinity of the intersection with John Hines Avenue, both Mr and Mrs Graham observed Mr Messruther's van drifting from side to side. Mrs Graham pulled her vehicle over onto the grass to the left hand side of the Highway.

15 There were a number of cars travelling in an easterly direction stopped at the Carlisle Avenue traffic lights ahead of the Grahams and Mr Messruther.

16 The Carlisle Avenue traffic lights facing to the east turned green, and the Smiths' sedan began to cross the intersection. Mr Sampson's prime mover also moved off towards the intersection.

17 Mr Messruther's van crossed the median strip onto the wrong side of the road and collided with the front right hand side of the Smiths' sedan, and the traffic light stanchion. The collision pushed the Smiths' sedan into the path of Mr Sampson's prime mover, with the result that the prime mover collided with the rear right hand side of the Smiths' sedan.

18 Mr Sampson and Mr and Mrs Graham provided assistance to the Smiths until emergency services arrived. Mr and Mrs Smith were taken to Nepean Hospital. They were in shock and deeply concerned about the plaintiff, who was obviously badly injured. The plaintiff was taken to Westmead Children's Hospital.

The lay evidence

19 It is convenient now to consider the relevant portions of the statements made by various witnesses in more detail, and in general chronological form.

(i) Mr Troy Smith

20 Mr Smith made a statement to police on 22 September 2004, 15 days after the collision occurred (Exhibit B). That statement relevantly provided:

As I proceeded directly through the intersection I saw a white van ... travelling eastbound on the Great Western Highway towards the intersection. This vehicle appeared to move very abruptly from lane 3 into the turning lane in lane 4. ... Then all of a sudden the van came straight across the median strip into the path of my vehicle.

Tracey said, "Look out for that van."

I tried to swerve out of the way to the left, but I felt the van collide with my car.

21 Mr Smith made an evidentiary statement in anticipation of these proceedings on 11 December 2013, approximately nine years after the collision occurred (Exhibit C). The recollection of the collision recorded in this statement is not materially different to that given to police. It stated that "the van came straight across and collided virtually head on with my vehicle", and that the warning from Mrs Smith, the attempt to swerve, and the collision itself "all happened in a fraction of a second". The statement also recorded:

Immediately before this accident occurred I had been watching the traffic lights and then I looked ahead to the road and I only saw the white van coming in my peripheral vision. It all happened very fast and I didn't get a chance to look at the oncoming van or see the driver of that van at all.

22 Mr Smith gave evidence in the witness box at the hearing before me. During cross-examination he confirmed that prior to his wife's warning he only saw the van in his peripheral vision, and that when he looked towards the van "it had taken a sharp turn at that point."

(ii) Mrs Tracey Smith

23 Mrs Smith, the mother of the plaintiff, made a statement to police on 22 September 2004, 15 days after the collision occurred (Exhibit D). In that statement Mrs Smith stated that she saw the van "start to veer towards the median strip" from the middle lane. She stated that "The next thing I saw was the white van jumping the medium [sic] strip and head straight towards our car." She did not see the driver of the van.

24 Mrs Smith made an evidentiary statement in anticipation of these proceedings on 11 December 2013, approximately nine years after the collision occurred (Exhibit E). That statement relevantly provided:

After a minute or two the lights changed to green and the car started to move away and then I noticed a white van which had been travelling in the opposite direction, suddenly swerve and come across to our side of the road.

I recall that I yelled out to Troy "Look out for the car!" and that he braked and swerved, but the van kept coming and collided virtually head on with our vehicle.

It all happened very quickly and I did not see the driver of the van at any time before it collided with our car.

25 Mrs Smith gave evidence in the witness box at the hearing. During cross-examination she gave evidence that when the van began to veer towards the median strip it was a "sharp" rather than a "gentle" turn. She also confirmed that she saw the van become airborne when it jumped the median strip.

(iii) Mr Anthony Sampson

26 Mr Sampson, the driver of the prime mover that was travelling behind the Smiths' car, made a statement to police on 4 November 2004, almost two months after the collision (Exhibit F). This statement relevantly provided:

When the lights turned green the traffic ahead began to move off in a westerly direction. I got the cabin on my vehicle over the first white line of the intersection then as the cabin came to the second white line on the western side of the intersection I saw a white van come across the median strip and collide virtually head on with a Magna station wagon that was travelling in lane 3 about 2 cars ahead of me. The impact was so bad that it pushed the Magna station wagon into the path of my prime mover. I locked up the brakes and tried to swerve and stop the truck but the front of the truck collided with the driver's side rear quarter panel. Things happened so quickly.

27 On 4 November 2005, almost one year and two months after the collision, Mr Sampson made an evidentiary statement (Exhibit 1). The statement was made over the telephone to Mr Stephen Groves, a solicitor, and is not signed. That statement relevantly provided:

The traffic had been stationary at a set of lights and the lights turned green and the traffic started to move away. I saw a van coming across the median strip from my right to my left. My initial thought was that the van was trying to do a U-turn.

I saw the van collect the front of the driver's side of the Mitsubishi Verada about on the driver's quarter panel and then drive that car backwards into my lane.

The whole incident happened very quickly.

I have a clear recollection of looking at the driver of the van and I thought he was sitting up and looking normal and appeared to be driving the van. I'm sure I told that to the investigating police officers and that they noted it in my statement

28 The handwritten file note made by Mr Groves with regard to the telephone call with Mr Sampson on 4 November 2005 was also received into evidence (Exhibit 2). It stated:

Anthony Sampson

Lane 2 then 3

- seen [?] van coming [?] across median strip - thought doing a u turn. Collect front driver side ¼ panel and pushed their [?] car backwards - all happened quickly.

Saw driver of van - I thought sitting up and looking normal. Driving [?] normally [?]. Told the police.

29 Mr Sampson made a further evidentiary statement in anticipation of these proceedings on 10 December 2013, approximately nine years after the collision. In that statement Mr Sampson acknowledged that the initial statement he made to police (on 4 November 2004) did not mention anything about his observations of the driver of the van prior to the collision. He also confirmed that the contents of the statement of 4 November 2005 were correct. The statement of 10 December 2013 also provided:

I was observing the white van as it came towards me, and crossed the median strip onto its incorrect side of the road.

My initial thought was that the driver of the white van was trying to do a U-turn, at the lights.

Although the accident was a long time ago, it was a very dramatic, and traumatic, event that I witnessed at the time. I still have a clear recollection of seeing the driver of the white van sitting up, with his hands on the wheel. He appeared to be driving the van. He was not slumped over the wheel, and appeared to be sitting upright in the position expected of a person driving a vehicle.

... I told Senior Constable Murphy what I saw of the driver of the van after the accident.

30 During cross-examination before me Mr Sampson agreed that he did not apply his brakes until he saw the van hit the median strip, but disagreed with the proposition that he had not yet entered the intersection when he saw that occur. He denied that the reason that his observations about the driver of the van prior to the collision were not in his police statement was because he had not seen the driver sitting upright. He stated that he thought he had told the police about that observation at the interview.

(iv) Mrs Louise Graham (nee Pipet)

31 Mrs Graham, who it will be recalled was driving behind Mr Messruther in an easterly direction along the Great Western Highway just before the collision, made a statement to police on 28 October 2004, approximately seven weeks after the collision.

32 In that statement Mrs Graham said that she was driving in lane one, and was travelling at about 75 km/h. From the intersection with John Hines Avenue she was aware of a white van travelling in the middle lane slightly in front of her vehicle. She saw it "slowly swerving back and forth across the lane" in movements that were "not sharp". She originally thought that the driver was not watching what he was doing. She looked through the rear window of the van into the driver's compartment and saw "the driver slumped over to the left", and that "his head was limp and swaying with the movement of the car." She formed the view that the driver was unconscious. She sped up slightly to "keep up with" the van. She flashed her headlights, sounded her horn, and yelled in an attempt to "wake up" the driver. The driver "made no voluntary movements" and was "still slumped to the left and limp". She pulled off the road onto the grass adjacent to the Highway in order to protect herself.

33 The statement went on to provide:

I watched the van as it veered to the left then the right. It was coming to the lights which were red. There were cars stopped. The van continued veering right this time. It looked as though it was gaining speed when it did this. I noticed he appeared to be speeding up as he moved from the middle lane to the right hand lane. The van then veered into the right turn lane and went straight over the median strip. I slightly lost sight of the van as it went over the median strip due to other east bound traffic when I heard a loud bang and saw debris flying from the area.

34 The statement recorded that after the collision Mrs Graham went to the van and saw that the male driver "had blood coming out of his nose and mouth". The statement provided that "It looked like all the blood was rushing to his head and I could see veins protruding from his forehead."

35 Mrs Graham made an evidentiary statement in anticipation of these proceedings on 20 December 2013, approximately nine years after the collision occurred (Exhibit 4). That statement provided that she first noticed the white van in the vicinity of the Bunnings Hardware Store located at the intersection of the Great Western Highway and John Hines Avenue. In cross-examination before me, Mrs Graham clarified that she first noticed the white van approximately 100 metres before the intersection with John Hines Avenue.

36 Mrs Graham's statement of 20 December 2013 contained the following material that is not included in the statement to police of 28 October 2004:

While still behind the van I saw the driver through the rear window. I was able to see the upper part of his body - his head, shoulders and upper part of his arms. He was slumped over to the passenger's side ...

I increased my speed and pulled up so that my car was adjacent to the van on its passenger side.

I looked through the passenger window of the van and saw that he still appeared unconscious. I could see his hands on the steering wheel.

37 The remainder of the statement is relevantly identical to the statement of 28 October 2004.

38 Mrs Graham gave evidence in the witness box at the hearing before me. She indicated that, with regard to the statement of 20 December 2013, the word "drift" should be substituted for the word "veer" wherever it appeared in her statement. During cross-examination she gave evidence that the van drifted at speed towards the median strip, without making a more dramatic turn to the right.

39 Mrs Graham was also questioned extensively in cross-examination about the relative positions of her car and the van. She gave evidence that at one point her car was adjacent to the van "for a couple of seconds, enough to see him passed out and not responding". She conceded that she did not specify that her car was "beside" or "adjacent to" Mr Messruther's van in her initial statement to police, but merely referred to keeping up with it.

(v) Mr Shannon Graham

40 Mr Graham, who was the passenger in Mrs Graham's vehicle, made a statement to police on 28 October 2004, approximately seven weeks after the collision (Exhibit 5). In that statement he recorded that he first noticed the van between the intersection with Roper Road and the Bunnings Hardware Store near the intersection with John Hines Avenue. Just after the intersection with John Hines Avenue the van "started to slowly swerve into our lane". The statement went on to provide:

When I looked over through the van window I saw the driver. My first impression was that he was leaning over to get something out of the glove box. But then I saw he was limp and lifeless. He had no movement apart from a slight movement with the contour of the road. It was only subtle movement with the shake of the road.

41 When Mrs Graham flashed the headlights and sounded the horn the driver "just stayed limp where he was", and Mr Graham "thought he was dead already".

42 The statement then provided:

Louise started to slow down. I looked up and saw 8 to 10 cars stopped at the red lights ahead. I saw the van was slowly starting to accelerate faster. It slowly swerved from the middle lane, to the right lane and then into the right hand turn lane.

I saw the van go over the median strip and lost sight of it behind traffic.

43 As for Mr Messruther's state after the accident, the statement provided:

I went over and saw that he had blood coming from his ear, his nose and mouth. He also had saliva coming from his mouth. He was hanging from his chair because the van was on its side and he was being held in by the seatbelt. ...

Louise asked me to check for a pulse. She was on the phone to the Ambulance Service. I looked in and saw one of the veins on his neck was as thick as my little finger. I leant in and pressed on it and there was nothing. There was no pulse.

44 Mr Graham made an evidentiary statement in anticipation of these proceedings on 20 December 2013, approximately nine years after the collision occurred (Exhibit 6). This statement relevantly provided:

At a point approximately 100 metres west of the intersection of the Great Western Highway and John Hines Avenue the van drifted into our lane without indicating and without varying its speed. The van then drifted into its own lane.

We continued in lane one and caught up to the van. As our vehicle pulled up alongside the van I looked across and through the passenger's window of the van and could see what I thought was the driver's right shoulder jutting above the window. I could see the steering wheel but could not see the driver's hands on the wheel. I could not see the driver's head.

45 He also specified in that statement that the van "appeared to be gaining speed and drifted into lane 3" approximately 300 metres before the intersection with Carlisle Avenue.

46 During cross-examination before me, Mr Graham confirmed that at one point the Grahams' car was travelling parallel and next to the van, and he was able to see through the passenger side window into the cabin of the van. He stated that from this position he could not see the driver's face, and that accordingly Mr Messruther must have been virtually lying across the seat. He conceded that he did not specify that the car was "beside" or "adjacent to" Mr Messruther's van in his initial statement to police.

47 Finally, he confirmed that the scene has not relevantly changed.

Medical evidence

48 Mr Messruther was 63 years of age at the time of the collision. He worked as a carpet layer.

49 A number of co-workers of Mr Messruther gave evidence by statement regarding his general health in the years prior to the collision. Mr Anthony Wright, a contractor who often employed Mr Messruther in the two years prior to his death, gave evidence that:

Prior to the accident [Mr Messruther] had never told me he was sick or was having any health issues, he had not mentioned that he was having any medical treatment, and he had not refused any work due to bad health.

50 Mr Mervyn Brooks worked with Mr Messruther on the morning of the collision laying carpets. He gave evidence that Mr Messruther had never complained about his health in the two years that they had regularly worked together. He also gave evidence that:

There was nothing different about [Mr Messruther] on the day of the accident. He didn't complain about being sick or feeling sick.

51 The medical notes that became Exhibits 9-13 reveal that Mr Messruther was generally in good health prior to the collision. There was certainly no history of cardiac problems, though on post mortem it was found that his heart was enlarged.

52 A joint expert report of two consultant cardiologists, Dr David Brenner and Dr Mark Herman, was tendered before me (Exhibit R). The two medical experts agreed that the likely cause of death was a cardiac arrhythmia, that is, a cardiac arrest. They agreed that Mr Messruther "may not have had any warning of premonitory symptoms before losing consciousness". It was also agreed that following the onset of cardiac arrhythmia Mr Messruther would have lost consciousness almost instantaneously and "hence he would not have been in control of the vehicle, and would not have been able to stop the vehicle." The two experts also agreed that cardiomegaly (an enlarged heart) is a pre-disposing factor to cardiac arrhythmia, and that emotional stress can cause cardiac arrhythmia in a person suffering cardiomegaly.

53 The experts gave evidence in conclave before me.

54 Dr Brender gave evidence that cardiac arrhythmia can lead to a loss of blood pressure, and it is possible for a loss of blood pressure to cause "seizure activity" or "convulsions" characterised by the patient becoming tense and rigid, interspersed with intervals of relaxation. Dr Herman agreed with that evidence. Dr Herman suggested that if Mr Messruther did experience a convulsive episode "it's possible that he might have actually stiffened up and hit his foot on the accelerator."

55 The cardiologists agreed that the evidence of the lay witnesses to the effect that Mr Messruther was "slumped over" and the van was driving erratically was consistent with Mr Messruther losing consciousness.

56 The experts agreed that there were two modalities of cardiac arrest: "seizure type activity" or flaccidity.

Other evidence

57 Dr Thomas Gibson, an engineer with expertise in the areas of accident reconstruction, biomechanics and injury causation, prepared two reports that became Exhibits L and N. Dr Gibson also gave evidence in the witness box before me on behalf of the plaintiff.

58 In his initial report of 14 October 2013, Dr Gibson noted the curve to the right in the Highway on approach from the west to the Carlisle Road intersection. He also noted the adverse camber or crossfall on this stretch of road that "allows drainage into the kerbside gutter from the median." His report stated:

A vehicle, if the steering is not used to compensate, tends to follow down the line in the camber, in this case towards the northern curb [sic].

59 Dr Gibson expressed the opinion, based primarily on the evidence of Mr and Mrs Graham about the movement of the van, that:

Mr Messruther was in control of the van, at least to the extent of keeping it within the lane as he approached the intersection with Carlisle [Avenue].

He then turned to the right in the region of the right lane ... He may have initiated this turn, because he intended to turn right at Carlisle Avenue or possibly, because of his lack of attention as he approached the intersection, he turned to avoid vehicles stopped at the lights.

60 In his supplementary report of 6 March 2014, Dr Gibson expressed the opinion that Mr Messruther was conscious and remained in control of the vehicle on the following five bases.

61 First, he travelled a distance of about 600 metres at approximately 75 km/h without deviating markedly from his lane.

62 Secondly, that was so notwithstanding the adverse camber towards the northern gutter.

63 Thirdly, he negotiated the right hand curve in the road.

64 Fourthly, he steered to the right to avoid a collision with the eastbound traffic stopped at the Carlisle Avenue traffic lights.

65 Fifthly, Mr Sampson, who had a clear view over the traffic from his position in the driver's seat of the prime mover, saw Mr Messruther sitting upright.

66 In short, Dr Gibson suggested that the actions of Mr Messruther "are consistent with a driver not paying full attention to the driving task, possibly leaning towards the glove box in the front passenger seat".

67 Dr Gibson's supplementary report also provided that he had verified the need for steering correction to overcome the adverse camber and avoid moving down the incline towards the northern kerb along the relevant stretch of road. It also verified, via reconstruction of the scene, that Mrs Graham would have had a limited view of the driver of the van while her sedan was adjacent to the van.

68 During cross-examination before me, Dr Gibson gave evidence that it was possible that the body of an unconscious person sitting in a motor vehicle would be flung upwards as a result of the force of colliding with a median strip at high speed.

69 Dr Gibson also conceded that he did not receive documents that quantified the camber and contour of the road before writing the two reports; nor did he calculate the camber himself.

70 Dr Gibson expressed the opinion that autonomic movements (such as clenching of the hands) of an unconscious driver could not account for a vehicle remaining in its lane over a distance of more than 400 metres. He stated that it would be more likely that, if the driver was clenching the wheel, the vehicle would follow whatever alignment it had at that point, and travel in a straight arc to one side of the road or the other.

71 Dr Gibson conceded that Mrs Graham's evidence formed the sole basis for his opinion that the van swerved sharply across the right hand turn lane at the Carlisle Avenue intersection.

72 Finally, as tribunal of fact, I undertook a view of the scene pursuant to s 53 of the Evidence Act 1995 (NSW). I was taken to a number of discrete viewing points to the west and east of the intersection, where I was assisted by show-ers on behalf of each party. I have taken that evidence into account in coming to my determinations of fact.

Submissions

73 For the reasons that I have explained above, the submissions of Queen's Counsel consisted of a close analysis of the evidence and not of legal principle. The plaintiff sought to show that Mr Messruther was conscious and driving. The defendant sought to show that I would not be satisfied of that on the balance of probabilities, because I could not be satisfied on the balance of probabilities that Mr Messruther was not already unconscious when the unusual behaviour of his van was first observed by the Grahams.

74 The plaintiff submitted that when Mr and Mrs Graham observed Mr Messruther prior to the collision he was merely distracted, leaning over to get something out of the glovebox. In support of this submission the plaintiff pointed to the fact that the van overcame an adverse camber to the left (that is, to the north) which surely would result in an uncontrolled vehicle drifting to the left of the Highway. In fact, it also traversed the curve in the Highway to the right. It also accelerated on the gradual uphill approach to the traffic lights with Carlisle Avenue.

75 In short, the plaintiff submitted that the fact that the van travelled approximately 600 metres at a significant speed without deviating markedly from the course of the road is evidence of driver input. That submission was based in large part on the evidence of Mr Gibson.

76 The plaintiff submitted that the evidence of Mr and Mrs Graham that Mr Messruther was "limp and lifeless" or "slumped" was influenced by their observations of Mr Messruther after the collision. He submitted that discrepancies in the evidence of Mr and Mrs Graham concerning the relative positions of the Graham's car and the van, and through which window of the van Mr and Mrs Graham were able to see Mr Messruther, was suggestive of confabulation, or at the least unreliable recollection.

77 The plaintiff submitted that Mr Messruther deliberately and abruptly swerved right as he approached the parked cars at the intersection, in order to avoid colliding with the eastbound cars waiting at the Carlisle Avenue intersection. In that regard, the plaintiff relied on the evidence of Mr and Mrs Smith to the effect that the van suddenly or sharply turned across the median strip.

78 Finally, the plaintiff submitted that Mr Sampson's evidence that Mr Messruther was "sitting upright" immediately prior to the collision strongly suggests that Mr Messruther was in control of his vehicle.

79 The defendant submitted that Mr Messruther was unconscious and therefore not in control of the vehicle from the time that Mr and Mrs Graham first noticed its erratic movements. The defendant submitted that I should accept the evidence of Mr and Mrs Graham that Mr Messruther was slumped over and non-responsive because they were independent and credible witnesses.

80 The defendant submitted (again based on the evidence of Mr and Mrs Graham) that, as the van approached the intersection with Carlisle Avenue, it continued to drift uncontrolledly, and did not decelerate. It accepted that, in fact, the evidence of both Mr and Mrs Graham was that the van accelerated as it approached the traffic lights. The defendant submitted that the van drifted, uncontrolled, across the east-bound lanes of traffic and median strip into oncoming traffic; in truth there was no sharp turn or swerve suggestive of driver input. And if there had been driver input, one would surely have expected Mr Messruther to stab on the brakes, deliberately or instinctively; and yet there was no sign of him having done so.

81 The defendant questioned the probative weight of Mr Sampson's evidence on a number of bases.

82 First, the skid marks from the brakes of Mr Sampson's prime mover suggested that Mr Sampson was further back in the intersection than he recalled, and therefore was not in a position to see completely into the driver's cabin of the van.

83 Secondly, any observations Mr Sampson made were necessarily based on a fleeting impression; as he said in his original statement many years ago, "Things happened so quickly."

84 Thirdly, Mr Sampson did not tell police that he observed Mr Messruther upright and apparently driving when he was interviewed following the accident.

85 Fourthly, Mr Sampson's subsequent statement of 10 December 2013, which deposed that Mr Messruther was "sitting up, with his hands on the wheel", is not entirely corroborated by the solicitor's hand written note of 4 November 2005, and was in any event made nine years after the accident.

86 Fifthly and finally, Mr Gibson gave evidence that it is possible that the impact of the van hitting the median strip could have caused Mr Messruther's body to be flung upwards and therefore appear to be sitting upright. In other words, it could well be that Mr Sampson was correct in his recollection of seeing Mr Messruther upright and behind the wheel as the van came over the median strip, but that does not establish that Mr Messruther was conscious and driving.

Determination

87 Speaking generally, I am satisfied that every witness who gave oral or written evidence was doing his or her best to tell the truth. In particular, I consider that every lay witness who was at the scene of the collision was telling the truth as best he or she perceived it and recalled it.

88 Again speaking generally, I consider that things recalled by witnesses many years after the collision are open to completely understandable inaccuracies of memory. If there is a notable distinction between what a witness said in 2004 and what he or she said in 2013 or indeed 2014, I prefer the version that was given weeks or months after the collision to the version that was given almost a decade after the collision.

89 In summary, the plaintiff has not satisfied me on the balance of probabilities that at the time of the collision Mr Messruther was conscious and driving. That is so for the following nine reasons.

90 First, I generally accept the evidence of the Grahams. I do not consider that they have somehow reconstructed their perception that Mr Messruther was lifeless based upon what they saw of him at the scene of the collision. In their original statements, they each spoke of the steps taken by Mrs Graham in order to rouse Mr Messruther. Although the phrase "keep up with" used by Mrs Graham in her original statement was ambiguous as to whether she was adjacent to the van of Mr Messruther or behind it, I am satisfied that she was describing the former situation. I also consider that the fact that Mrs Graham pulled her car off the Highway powerfully corroborates the proposition that she had seen something very dangerous, and wished to protect herself and Mr Graham. Finally, whilst I accept that there are inconsistencies between the evidence of Mrs Graham and Mr Graham (for example, about whether the van drifted within its lane or out of its lane and into the lane in which the Grahams were travelling), I regard those inconsistencies as entirely natural, and as supporting their evidence rather than detracting from it.

91 Secondly, it is true that the van was able to stay on the Highway as it travelled east for some little time. But the parties were not in dispute that the distance over which the Grahams observed it was around 600 metres, and that it was travelling at approximately 75 km/h. In other words, it stayed on the road for approximately 29 seconds. It was seen to drift at the least within a lane, and possibly from lane to lane. I have seen for myself that the curve to the right (that is, to the south) is a reasonably gentle one. I have also seen that the camber to the left (that is, to the north) is very gentle indeed. To my mind, one would expect a vehicle that was not being driven to stay on the road for some little time and eventually collide with another vehicle or a stationary structure; tragically, that is exactly what happened.

92 Thirdly, I do not consider that Mr and Mrs Smith were in a position to observe the angle at which the van crossed the median strip with complete accuracy. In other words, I am not satisfied that the van veered to the right in a way suggestive of a conscious manipulation of the steering wheel at that time.

93 The emergency to which Mr and Mrs Smith were subject was unexpected, terrifying, and life threatening. After the collision they were both in shock and highly distressed about the injuries to their son.

94 It is noteworthy that in his original statement Mr Smith spoke of the fact that "the vehicle appeared to move very abruptly from lane 3 into the turning lane in lane 4" [emphasis added]. Mrs Smith stated that "I [noticed] a white van coming from the opposite direction ... I saw the white van start to veer towards the medium [sic] strip". In other words, it is not the case that Mr or Mrs Smith stated with perfect clarity that they saw the van driving normally, and suddenly undertake a pronounced veer that could only be explained by driver input.

95 In short, whilst I completely accept that at all stages Mr and Mrs Smith have sought to tell the truth, I consider that the van veering towards them was a completely understandable impression that they obtained, rather than something that actually occurred in such a way as to demonstrate driver input.

96 Fourthly, I think the same can be said, to a lesser degree, about the evidence of Mr Sampson on the same topic. Whilst I respectfully find unpersuasive the analysis of the defendant seeking to show that Mr Sampson was not in a position to see the van in the way he had described, I do consider that, in the frightening and shocking circumstances, he gained a wholly natural impression of the van veering as if being driven, rather than actually having been in a position to make that assessment accurately.

97 Fifthly, for the same general reasons, whilst it is not insignificant that Mrs Graham originally referred to the van "veering" to the right, I do not regard the use of that expression as determinative. Furthermore, it is clear that she used that expression when describing the van when it was originally moving within its lane, and continued to use it when she described its passage over the median strip.

98 Sixthly, I accept that Mr Sampson saw Mr Messruther sitting behind the wheel in an upright position as the van careened over the median strip. But it is noteworthy that Mr Messruther was restrained by his seatbelt at that stage. I also accept that one would expect the movement of the van over the hump of the median strip to create an upward force upon Mr Messruther. I regard the fleeting impression that Mr Sampson obtained as being generally consistent with the unconscious person of Mr Messruther being restrained by the seatbelt and thrust into an upward position by the movement of the van. As for the greater detail given by Mr Sampson in his statement nine years after the event, I consider that there is a degree of entirely sincere reconstruction in that document; as I have said, my emphasis is upon what was first said by each witness at the earliest stage after the collision.

99 Seventhly, if it was indeed the case that the final turn to the right was conscious evasive action taken by Mr Messruther, one would surely see signs of concomitant braking. And yet there was none.

100 Eighthly, I have reflected carefully upon the fact that both Mr and Mrs Graham observed the van to speed up, and that both of them said so in their original statements to police. That is in the context of me having observed that there is a slight incline upwards to the west of the intersection in question as one travelled east on the Great Western Highway.

101 But in the end I have come to regard the observation of acceleration as significant but not determinative. It is possible that Mr and Mrs Graham were mistaken, and gained the impression of the van accelerating as the situation became more frightening and more dangerous as the van approached the parked cars in front of it. It is also possible that the weight of the leg of the unconscious Mr Messruther pressed down onto the accelerator. Finally, I also think it is possible that, as part of the effects of the heart attack, Mr Messruther suffered a seizure that caused his leg to press on to the accelerator.

102 Ninthly, while I do not deprecate the expertise of Dr Gibson, I respectfully consider that his evidence can be subject to some valid criticisms. First, Dr Gibson's expertise is in biomedical engineering. Although he also has specialised knowledge of vehicle dynamics, I do not consider that his opinion on the determinative issue of whether Mr Messruther was conscious or not is conclusive. Secondly, Dr Gibson's evidence was based on witness statements, some of which can be discounted to a degree for the reasons that I have given above. Thirdly, the opinions of Dr Gibson about the presence of driver input derived from the behaviour of the van cannot account for the evidence of Mr and Mrs Graham of what they saw of Mr Messruther before the collision.

103 In short, considering all of the evidence as a whole, and refraining from giving any one particular piece of evidence prominence, I am not satisfied on the balance of probabilities that Mr Messruther was conscious and driving at the time of collision. Indeed, I tend to the view that the defendant has established on the balance of probabilities that he was unconscious at that time, and had been so from the time when Mr and Mrs Graham first observed the unusual behaviour of the van. But because of the joint position of the parties about the onus and standard of proof, such a finding is not necessary for the defendant to succeed.

Conclusion

104 As a result of my evaluation of all of the evidence, I am not satisfied that the plaintiff has established an element of the tort of negligence. It follows that the separate question of liability must be determined in favour of the defendant.

Costs

105 Neither party submitted that anything other than the usual order that costs should follow the event should be made. For abundant caution, I shall permit the parties one week from today to contact my Associate to arrange to have the matter relisted if any different order is sought by either party.

Orders

106 I make the following orders:

(1) Judgment for the defendant.

(2) Unless either party contacts my Associate within one week of today with regard to conducting an argument about costs, the plaintiff must pay the costs of the defendant.

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Decision last updated: 10 November 2014