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Robertson v Territory Insurance Office [2005] NTSC 74

PARTIES: ROBERTSON, Paul

v

TERRITORY INSURANCE OFFICE

TITLE OF TRIBUNAL: MOTOR ACCIDENTS COMPENSATION TRIBUNAL

JURISDICTION: CIVIL

FILE NO: M1 of 2004 (20400809)

DELIVERED: 1 December 2005

HEARING DATES: 23, 24, 25 November 2005

JUDGMENT OF: SOUTHWOOD J

CATCHWORDS:

TRAFFIC LAW – MOTOR ACCIDENTS COMPENSATION

Reference to Motor Accidents Compensation Tribunal –dux litus - whether applicant exempted from benefits under the Act – whether applicant used vehicle without owner’s consent – whether accident occurred while vehicle was being used for or in connection with a dangerous act – whether accident occurred as a result of applicant attempting to have unlawful sexual intercourse without consent – whether applicant used vehicle in a manner creating substantial risk of injury to him and he consciously and unjustifiably disregarded this risk or was recklessly indifferent to it – decision of board set aside – applicant entitled to benefits

Beevis v Dawson [1957] 1 QB 195; Briginshaw v Briginshaw (1938) 60 CLR 336; Currie v Dempsey (1967) 69 SR (NSW) 116; Helton v Allen (1940) 63 CLR 691; Jones v Dunkel (1959) 101 CLR 298; June d’ Rozario & Associates Pty Ltd v Makrylos (1993) 112 FLR 314; Kypreos v Nabalco Pty Ltd [1999] NTSC 60; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; Pollard v Territory Insurance Office (1997) 6 NTLR 142; Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187; Stewart v Dillingham Constructions Pty Ltd [1974] VR 24, applied

Motor Accident (Compensation) Act s 9(1)(e) and s 10(a)

REPRESENTATION:

Counsel:
Applicant: J B Waters QC
Respondent: I Nosworthy

Solicitors:
Appellant: Withnall Maley & Co
Respondent: Cridlands

Judgment category classification: B
Judgment ID Number: Sou0514
Number of pages: 36

IN THE MOTOR ACCIDENTS (COMPENSATION) APPEAL TRIBUNAL
AT DARWIN

Robertson v Territory Insurance Office [2005] NTSC 74
No. M1 of 2004 (20400809)

IN A MATTER under the
Motor Accidents Compensation Act

BETWEEN:

ROBERTSON, Paul
Applicant

AND:

TERRITORY INSURANCE OFFICE
Respondent

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 1 December 2005)

Introduction

[1] This is a reference pursuant to s 29(1) Motor Accidents (Compensation) Act (the Act). The applicant is aggrieved by a determination of the Board of the Territory Insurance Office (the board) that was made on 9 July 2003. The board determined that the applicant was not entitled to benefits under the Act because the applicant was involved in a motor vehicle accident that occurred while he was using a car without the consent of its owner.

[2] The reference to the tribunal was filed by the applicant on 8 January 2005. In reply to the reference the respondent relies on a further amended answer dated 22 November 2005. Leave to file the further amended answer was granted to the respondent by the tribunal on 23 November 2005. In the further amended answer the respondent pleads three additional grounds as to why it is said that the applicant is exempted from benefits pursuant to the Act. First, the applicant is excluded from benefits as the accident occurred while he was using a car for or in connection with doing a dangerous act contrary to s 154 of the Criminal Code. Secondly, the applicant is excluded from benefits as the accident occurred while he was using the car for or in connection with having or attempting to have unlawful sexual intercourse with the driver thereof without her consent contrary to s 192(3) of the Criminal Code. Thirdly, the applicant is not entitled to benefits pursuant to s 13 and s 17 of the Act as the accident occurred while the applicant was using the car in a manner that created a substantial risk of injury to him and he consciously and unjustifiably disregarded the risk or was recklessly indifferent to it.

[3] Only liability is in issue. The quantum of the applicant’s claim for benefits pursuant to s 13 of the Act has been agreed between the parties at $32,831.37. The benefits are for a closed period of loss of earning capacity from 17 January 2003 to 14 June 2004. The parties have also agreed that as a result of the accident the applicant has sustained a whole of person permanent impairment of 7 per cent. This means that pursuant to s 17 of the Act the applicant is entitled to 2 per cent of the prescribed amount being 208 times average weekly earnings at the time the payment is made.

[4] Where a matter is referred to the tribunal it shall conduct such hearings into the matter as it thinks fit and may make such determination as the board could have made thereon as the tribunal considers proper in the circumstances having regard to the intention of the Act, and such determination is binding on the board. The primary purpose of the Act is to establish a no fault compensation scheme in respect of death or injury in or as a result of a motor vehicle accident.

Background

[5] The applicant is 33 years of age. He is a plasterer who operates his own business. He now resides at Altona North in Victoria. At all material times he was married and had a mistress. He and his wife had six children. They all lived at 11 Maddock Court, Malak. The applicant’s mistress was Tanya Chilly. She and the applicant had three children. She and her children lived at Milner. On or about 15 January 2003 the applicant took possession of a blue Holden Commodore station wagon (the car) that was owned by Tanya Chilly. The car was unregistered and had a broken ignition which meant that the car could not be started with its key. It was started with a screwdriver. The applicant had agreed to fix the ignition of the car.

[6] Helena Griesebner is 20 years of age. At all material times Ms Griesebner was a friend of the applicant’s. She resided with her mother at Byrne Circuit, Moil. Her parents had separated. When she worked late at night in her father’s takeaway shop at the Hibiscus Shopping Centre she would stay overnight at his house at 18 Maddock Court, Malak. At about 1.00 am on 17 January 2003 the applicant and Ms Griesebner went cruising in the car around the Casuarina area. When they finished cruising they drove to Buffalo Creek in the car.

[7] At about 7.00 am on 17 January 2003 the applicant and Ms Griesebner were seriously injured in an accident in the car at the intersection of Lee Point Road and Fitzmaurice Drive. The accident happened after they had left Buffalo Creek and were returning home. The accident occurred when Ms Griesebner who was driving the car lost control of its steering wheel. The car ran off the road and hit a light pole. The applicant was seated in the front passenger seat of the car at the time of the accident. There was no one else in the car at the time of the accident. Ms Griesebner was an unlicensed driver and she was affected by alcohol at the time of the accident. She had a blood alcohol reading of .136.

[8] The applicant was seriously injured in the accident. He sustained head injuries, a fracture of his acetabular, a fracture of his tibia and fibula and peroneal nerve palsy. Up until 14 June 2004 he continued to suffer from injuries to his back, neck and shoulder.

[9] At the time of the accident the applicant was a self employed plasterer with his own business, Rainbow Renderers. On 12 February 2003 he made an application for benefits under the Act. The application was received by the respondent on 13 February 2003. On 9 July 2003 a designated person determined on behalf of the respondent that the applicant was not entitled to benefits on the ground that he was involved in an accident that occurred while he was using a car without the consent of its owner. On 4 August 2003 the applicant appealed the determination of the designated person to the board. On 9 December 2003 the board upheld the determination of the designated person.

[10] Following the accident Ms Griesebner was convicted of four traffic offences arising out of her driving of the car at the time of the accident on 17 January 2003. She was disqualified from driving for a period of 18 months and sentenced to an aggregate period of six weeks detention to be released immediately upon her giving a security by recognizance of $300 to be of good behaviour for a period of 12 months.

Issues

[11] There are four principal questions in this proceeding. First, is the applicant excluded from benefits pursuant to the Act because the accident occurred while the applicant was using the car without the consent of its owner? Secondly, is the applicant excluded from benefits pursuant to the Act because the accident occurred while he was using the car for or in connection with the commission of a dangerous act contrary to s 154 of the Criminal Code? Thirdly, is the applicant excluded from benefits pursuant to the Act because the accident occurred as a result of him attempting to have unlawful sexual intercourse with Ms Giesebner without her consent contrary to s 4, s 192(3) and s 277 the Criminal Code? Fourthly, did the applicant use the car in a manner that created a substantial risk of injury to him, and did he consciously and unjustifiably disregard the risk of injury to him, or was he recklessly indifferent to the risk of injury to him?

[12] As the four grounds of exemption pleaded by the respondent in its further amended answer are not denials of essential ingredients in the applicant’s claim but are four statutory grounds of avoidance of the applicant’s claim pursuant to s 10(a) and s 9(1)(e) of the Act, the respondent bears the legal burden of proof of each of the four grounds of exemption it has pleaded in its further amended answer: Currie v Dempsey (1967) 69 SR (NSW) 116 at 125; Stewart v Dillingham Constructions Pty Ltd [1974] VR 24 at 28. Further, because of the criminal nature of the conduct pleaded against the applicant by the respondent in the first three grounds of exemption and the gravity of the consequences following from such findings if they are made by the tribunal, clear or cogent or strict proof is necessary for these three grounds of exemption to be proven by the respondent: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 711; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450. Although the ordinary standard of proof remains the balance of probabilities, where the matter to be proved involves criminal conduct the tribunal should not lightly make a finding that, on the balance of probabilities, an applicant has been guilty of such conduct. Members of our society do not ordinarily engage in criminal conduct.

[13] I directed that the respondent be dux litis on each of the four grounds of exemption that it has pleaded in the further amended answer. The question of who should be dux litis in a proceeding, or in a particular issue in a proceeding, is intimately linked with the identification of the central proposition or propositions in issue, and with the party on whom the legal burden of proving that proposition or those propositions lies. Generally, but not always, the person against whom a verdict would be given if no evidence were called on either side, is entitled and bound to begin. “To determine who is to be dux litis the question should always be: what is the fairest and most effective way of resolving the issues in question?”: Kypreos v Nabalco Pty Ltd [1999] NTSC 60 per Kearney J; June d’ Rozario & Associates Pty Ltd v Makrylos (1993) 112 FLR 314 at 315; Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 at 190; Beevis v Dawson [1957] 1 QB 195 at 204. Given the likelihood that the quantum of the applicant’s claim for benefits and the extent of his incapacity would be agreed between the parties as ultimately they were, that the respondent bore the legal burden of proof of each of the four grounds of exemption, the serious nature of the allegations made against the applicant, the lack of particulars provided by the respondent in its further amended answer and the late amendments to the respondent’s answer that are contained in the further amended answer, in my opinion fairness and efficiency required that the respondent should lead its evidence about the four grounds of exemption first.

[14] In my opinion the reference to the tribunal should succeed and the determination of the board should be set aside. The respondent failed to prove each and every one of the four grounds of exemption on which it relied. I was unable to accept the evidence of Ms Griesebner. She was an unreliable witness.

Admissions

[15] In the further amended answer the respondent makes the following admissions. That on or about 17 January 2003 the applicant was a passenger in a car that left the road and collided with a light pole at the intersection of Lee Point Road and Fitzmaurice Drive. The collision occurred on a public street and was an accident as defined by s 4 of the Act. The applicant is a resident of the Northern Territory. Further, as I have stated, the quantum of the applicant’s s 13 benefits have been agreed and the extent of his permanent impairment is admitted.

The evidence tendered by the respondent

[16] The respondent led evidence from John Riley and Helena Griesebner. The respondent also tendered a certificate on completion of a blood test in relation to the applicant, a statement of Ms K Poel in relation to Ms Griesebner’s blood alcohol reading, a statement of the applicant taken by Mr Riley, three letters written by the applicant to Ms Griesebner, a letter from the applicant’s solicitors to the respondent’s solicitor and two segments of video film that show the applicant working as a plasterer.

[17] Mr Riley is a private enquiry agent and insurance assessor. In 2003 he was employed by Western Assessors. He was called to tender a written statement that was taken by him from the applicant and signed by the applicant on 16 March 2003. The respondent seeks to use what it says are admissions made by the applicant in the statement to prove that the applicant was using Tanya Chilly’s car without her consent at the time of the accident. Mr Riley was not cross examined by Senior Counsel for the applicant. At the conclusion of Mr Riley’s evidence in chief, Mr Waters QC asked that Mr Riley make himself available to be recalled as he was not in a position to cross examine Mr Riley as he was not given any notice of the purpose for which Mr Riley was called to give evidence. However, at no stage during the hearing did Mr Waters QC request that Mr Riley be recalled for cross examination.

[18] In the written statement that was signed by the applicant on 16 March 2003 and tendered at the hearing before the tribunal through Mr Riley the applicant makes a number of relevant statements. The applicant states that, “Tanya was very angry that we had been involved in the accident and the fact that Helena had driven the car when she had left it with me for repair. When Tanya dropped the car off to be repaired we did not discuss if I could drive the car. Tanya is now not speaking with me.” He further states, “I had not seen Helena for a couple of days and when she arrived she told me she was going to visit Joseph. Helena came to my place to pick up Tanya’s car, which was parked in my yard… I was bored, so I decided to go with Helena to Joseph’s. After arriving at Joseph’s, it was early and despite sounding the horn he did not come to the front. As such, we departed to return directly back to my house. Following our departure we were involved in an accident.”

[19] During her evidence in chief, Helena Griesebner gave the following evidence. She was the driver of the car at the time of the accident. At the time of the accident she did not hold and had never held a driver’s licence. She did not know the applicant very well but she liked him. She had met him a couple of times before they went out on 17 January 2003. She had been introduced to him by a friend. During the night of Thursday 16 January 2003 the applicant called her a few times on her mobile telephone while she was working at her father’s takeaway shop at the Hibiscus Shopping Centre. He invited her out for a cruise and a drink. She told the applicant what time she would finish work and that he could pick her up at her father’s house. She finished work at approximately 12.30 am on 17 January 2005 and was driven to 18 Maddock Court Malak by her father. At about 1.00 am the applicant drove to her father’s house and picked her up in the car. It was her understanding that they were just going to have a drink and a drive around. They drove around different places in the Casuarina area. The applicant drove the car. She was in the front passenger seat.

[20] Ms Griesebner took a bottle of Johnnie Walker, a bottle of Jim Beam and two bottles of coke with her in the car. Each of the bottles was full. She mixed the Jim Beam with one of the bottles of coke. While they were cruising about Casuarina they would stop at different places and have a couple of drinks. She drank from the bottle as did the applicant. They continued to drink from the bottle as the night progressed. Ms Griesebner could not remember any detail of where they drove during the course of the cruise. She said that they drove a lot around the Casuarina area and she remembers driving past the Nightcliff Jetty. While they were cruising around the applicant told her that he was 24 years of age.

[21] Ms Griesebner said that after they had cruised around for about four hours they went for a drive to Buffalo Creek. It was still dark. They remained at Buffalo Creek until just before the accident. When they arrived at Buffalo Creek they got out of the car and sat on some cement benches at a cement table. There was some lighting at Buffalo Creek but she could not see too well. They sat talking and drinking. The applicant sat opposite her. After they had chatted for a short time about work and general matters of interest the applicant moved from where he was seated. He came and sat next to her and kissed her. She kissed him back. Their mood was happy.

[22] A short time later the applicant walked to the car and he sat in the back of the car. He sat on the left hand side of the back seat of the car which was a bench seat. He then asked her to join him in the car. She said, “Why?” He said just come and sit and talk. She then joined him on the back seat of the car. He then shut the left hand rear door of the car. She left the right hand door open as she did not want to feel closed in. She was questioning what he wanted. They talked for a couple of minutes and the applicant touched her thigh and kissed her. She did not really kiss him back. She did not push him away. She asked him what he was doing. He said, “It is alright. I am not going to hurt you.” She did not say anything more. After that he turned her body and legs towards him and he tried to pull her pants down. She was wearing loose basketball shorts. The applicant took her basketball shorts and her underwear off. Her shorts and underwear remained on one of her ankles. She said, “What are you doing?” He then held her upper legs apart with his forearms and he tried to have oral sex with her. He then put his fingers in her vagina. He did so on just one occasion. She said, “What are you doing? No! Do not do that.” By this time the applicant’s demeanour had changed. It was very different. He seemed a lot more aggressive. She became afraid. She wriggled about because she did not want to have sex with him. The applicant had removed his pants down to his knees. He got on top of her and tried to have sex with her. However, there was no contact between his penis and any part of her body. His penis did not penetrate her vagina. She told him that she did not want to have sex at that location. She said she wanted to go to a different place. She said, “I do not want to do this here. Let’s go somewhere else.” He continued trying to have sex for a little while and she continued to wriggle and twist about. The applicant then backed off. About five minutes passed between when the applicant first pulled her pants down and when he backed off.

[23] After Ms Griesebner said that she wanted to go somewhere else, the applicant said, “Well if you want to go somewhere else you can drive the damn car.” She said, “Alright I will.” She then put her pants back on. She then got into the driver’s seat of the car for the first time. She felt affected by alcohol. The applicant seemed drunk. The applicant started the car with a screwdriver as there was no key. The applicant then got into the car. He sat in the front passenger seat. Ms Griesebner then drove off. When she left the Buffalo Creek area she drove down Lee Point Road. She intended to drive to her father’s house in Malak. By this stage she was afraid of the applicant because he had changed a lot since they started out together. However, she attempted to hide her fear and focus on getting home. They did not speak while they drove along Lee Point Road. By this time it was early in the morning the sun was just coming up.

[24] While Ms Griesebner drove the car along Lee Point Road the applicant placed his right hand on top of her left thigh. He was fiddling with her private parts. She grabbed his hand with her left hand and tried to throw his hand away but she was unsuccessful. It was difficult to move his hand. The applicant just kept his hand near her private parts. Her right hand remained on the steering wheel at all times.

[25] When the car approached the intersection of Fitzmaurice Drive and Lee Point Road, Ms Griesebner was holding onto the steering wheel with her right hand and she somehow turned the car to the left. She was still grabbing onto the applicant’s hand with her other hand. His hand was near her private parts. She again tried to move his hand away with her left hand. However, she was unsuccessful. Just before the accident the applicant’s hand was on top of her thigh nearly between her legs. She was holding the steering wheel with her right hand and with her left hand she was trying to grab his hand off her. It affected the way she was driving. She was concentrating more on getting his hand away. She did not remain in control of the car and the accident occurred.

[26] The next thing Ms Griesebner remembers is waking up in a hallway at the Royal Darwin Hospital. Her father and her sister were there. Initially she had no idea what had happened to the applicant. She tried to find out what had happened to him but nobody could tell her anything. She was very upset. She thought he had died. Ms Griesebner was ultimately contacted by the applicant. She received a letter from him while she was still in hospital a few weeks after the accident. They corresponded with each other. She received a total of three letters from him. She also spoke to him a number of times on her mobile telephone a couple of months after the accident when she was out of hospital. He told her that he wanted to get their story straight to the police. The applicant asked her to tell the police that she had gone over to his house to borrow the car, he had gone along as a friend and she had driven the whole night. The applicant did not explain why he wanted them to get their stories straight. After the accident Ms Griesebner was charged with a number of driving offences to which she pleaded guilty.

[27] During the cross examination of Ms Griesebner it emerged that she first spoke about being sexually assaulted by the applicant and of his conduct causing her to lose control of the car two weeks before giving her evidence when she made a statement to Lisa Riley, an insurance assessor. Despite being formally interviewed by police and charged and convicted and sentenced for various offences following the accident, she complained to no one else about the applicant’s conduct. She did not speak to her mother, her psychologist, Dr Rosalind Cole, her Anglicare Youth Support Worker, Ms Melissa Marks, or her solicitor, Ms Louise Bennett, about being sexually assaulted or interfered with by the applicant. Dr Cole provided counselling including substance abuse counselling to Ms Griesebner after the accident. Ms Griesebner said that it was her decision to seek such counselling after the accident. The inference being that she considered her alcoholism to be a primary cause of the accident. She admitted in cross examination that her strategy in October 2003 and in the months surrounding that month was to cut down on her substance use and abuse. She did not seek counselling for being sexually assaulted. Ms Bennett appeared in the Court of Summary Jurisdiction to conduct Ms Griesebner’s plea in mitigation after she pleaded guilty to the charges against her arising out of the accident. She did not tell Ms Bennett that the applicant caused the accident by sexually interfering with her and thereby distracting her while she was driving.

[28] Prior to making her statement to Mrs Riley, Ms Griesebner had made inconsistent statements to the police and to Mr Riley. Importantly in neither of her earlier statements did she mention that the applicant had sex with her or attempted to have sex with her at Buffalo Creek or that he had sexually interfered with her while she was driving the car along Lee Point Road immediately before the accident.

[29] On 15 April 2003 Ms Griesebner participated in a formal record of interview with police, at the Peter Macaulay Centre, about her involvement in the accident. She did so in the presence of her father. Her father was present because Ms Griesebner was only 17 years old when she was interviewed by police. She was formally cautioned before the record of interview started. She understood the caution and she knew that she did not have to speak to the police if she did not want to speak to them. She knew that what she said may be used against her. There is nothing to suggest that any of the statements that she made to police were not voluntary.

[30] Following is a summary of what Ms Griesebner told police during her record of interview. On 17 January 2003 she finished work at about 1.00 am or 1.30 am. She went home and the applicant came around to her house in the car and picked her up. The applicant was driving the car. She and the applicant drove around and had a few drinks. The applicant was driving. She was drinking Johnny Walker. She had mixed some of the Johnny Walker in a bottle of coke. She was drinking both the Johnny Walker that she mixed with the coke and Johnny Walker straight from the whiskey bottle. The applicant was probably drinking the Jim Beam. She does not know how they ended up with no alcohol. They stopped at Buffalo Creek where they sat around and drank. When it was very late the applicant was too drunk to drive. He asked her to drive. She said yes. She just wanted to get home as well. They each had mobile telephones with them but neither of them had any credit on the telephones. She knew she was drunk but she thought she would be okay to drive. She remembers driving along following the side of the road. She was watching the edge of the road. She could hardly see. The car was defective. A fuse in the car was blown. She was probably going fast. However, it did not seem fast. The headlights of the car were going on and off while she was driving. She does not remember it being light. She remembers that the sun was just about to come up. There was also a steering problem. She does not remember the collision at all. She just remembers waking up in hospital. The applicant and she were not having an affair or anything like that. They were not seeing each other and they were not boyfriend and girlfriend. They were just friends. It was not true that she approached the applicant and asked him to use the car to take her to Joseph’s. It was probably true that she drove the car to Joseph’s place and honked the horn but they could not raise him. It was not true that she drove from the applicant’s place until they had the accident. It was not true that the applicant never drove the car.

[31] In essence during her record of interview with police Ms Griesebner attempted to attribute at least part of the cause of the accident to poor light and to defects in the car. Significantly, she said that she and the applicant were not having an affair or anything like that and that, in effect, the reason she had driven was that the applicant was too drunk to drive, they could not use their mobiles and they both wanted to get home. She did not tell the police that she had been sexually assaulted by the applicant or that his conduct had not only caused her to drive the car but to lose control while she was driving the car.

[32] On 13 May 2003 Ms Griesebner signed a hand written statement that had been taken from her by Mr Riley. In summary she told Mr Riley the following. At the time of the accident she was living with her mother at Moil. It was normal practice when working the late shift at her father’s takeaway shop for her to sleep at her father’s house at Malak. She finished work at 1.30 am on 17 January 2003. A short time after she got home the applicant picked her up in the car from her father’s house. Paul was driving the vehicle when he picked her up and she got in the passenger’s side. They drove around to different locations in the Casuarina area. The applicant drove at all times. She took with her a bottle of Johnny Walker, a bottle of Jim Beam and a couple of litres of coke. When they stopped at different locations they would have a drink. They drove around for a couple of hours before they made it to Buffalo Creek where they stopped. While at Buffalo Creek they were alone and they sat outside the car. As they were getting ready to leave the applicant asked her to drive the car home. The applicant was quite drunk. Although she had been drinking Ms Griesebner thought that she was capable of driving. She took it upon herself to drive them home. She knew it was the wrong thing to do. Two years before the accident she was charged for unlicensed driving while drunk. The car was started with a screwdriver. She cannot remember whether the applicant or she started the car with the screwdriver. By the time they left Buffalo Creek they had drunk both the bottles of Johnny Walker and Jim Beam. She drove the car from Buffalo Creek. She recalls travelling home on Lee Point Road. The sun was just coming up and visibility was clear. She does not know what speed she was travelling at, nor does she remember what happened. She had not been charged by police but she was told by them that she would be charged. In essence, in her statement to Mr Riley, Ms Griesebner blames no one for the accident. However, she is unable to accept responsibility for the accident. She is not able to remember what happened. She was trying to do the right thing.

[33] When asked in cross examination what prompted her to tell Mrs Riley what she told her before she gave her evidence, Ms Griesebner said, “She (Mrs Riley) seemed – I do not know? She seemed very nice and I felt comfortable telling her. I felt better after telling Mrs Riley.” Significantly Mrs Riley went to see her she did not go to see Mrs Riley. Ms Griesebner’s evidence is vague and lacks detail.

[34] When asked in cross examination about the inconsistencies between what she told police and what she told Mrs Riley, Ms Griesebner said, “I could not talk to them about anything. I was trying to forget everything that had happened. I was afraid (of the applicant). Stupidly, I did not want to get Paul into any more trouble. I did not want to tell police. I was afraid of Paul (the applicant).” She did not tell the police she was afraid of the applicant because, “I was not happy about what had happened. I tried very hard to forget everything. I did not want everybody to look at me differently.” She also said that when she made her statement to police her father was present and she did not want to say anything in front of her father. She was embarrassed. Ms Griesebner said that she had changed her mind about these matters just a few weeks ago. However, she did not know what caused her to change her mind. She has still not reported the sexual assaults that she said occurred to the police. Her evidence once again is vague and it does not make much sense. It is internally inconsistent.

[35] When Ms Griesebner was asked in cross examination why she was afraid of the applicant she agreed that there was nothing in the letters that she had received from him after the accident that made her afraid. She also agreed that there was nothing in the telephone calls that she received from him after the accident to make her afraid. She said that the telephone calls made her question, “Why I was the one who had to take all the blame for everything.” She did not want to take the blame for the part that she did not do. This of course is consistent with her telling both the police and Mr Riley that she did not drive all the time after the applicant picked her up. The applicant asked her to tell the police that she drove all of the time. Later during cross examination Ms Griesebner admitted that she was not afraid of the applicant while they were corresponding when they were in hospital. She said that, “I did not really have any reason to be really afraid of him.” She also admitted that the applicant never threatened her or did anything to make her apprehensive. She said that, “He never yelled at me or anything like that to make me afraid.” She went onto acknowledge that the applicant never threatened her in any way shape or form. She agreed that the letters that the applicant wrote to her were friendly and inoffensive letters of affection and she said that she did not respond to them in an angry way. She said that the fear came from the way that he held her there on the night of the accident. However, when asked how long the applicant persisted when she was on the back seat of the car she said, “Not long at all. Seconds, a minute – it was very quick.” Her evidence once again was vague and did not make much sense. It is internally inconsistent and does not have a ring of truth about it.

[36] When asked why she had not told Mr Riley what she told Mrs Riley, she said, “I did not see Mr Riley as being understanding.” Further, “I felt very sorry after the accident. I just did not want to tell everybody about everything.”

[37] When asked in cross examination why she did not tell any of her counsellors about the alleged sexual assault or that she was not responsible for the accident, Ms Griesebner said, “I just wanted to forget that part of the accident. I was embarrassed. I did not want to make a big deal out of … I did not want anybody to know about it. I have not told anybody about it.” Once again her explanation was unsatisfactory.

[38] In addition to the major inconsistency between what Ms Griesebner told the tribunal and what she told the police and Mr Riley there a number of other notable inconsistencies in her various versions of events involving the accident. Ms Griesebner told the police that visibility was poor and she had difficulty seeing. She told Mr Riley that visibility was clear. She told the tribunal that she could see. In circumstances where she was only with the applicant for six hours at the most on 17 January 2003, she told the tribunal that she and the applicant had driven around for between four and six hours before going to Buffalo Creek and that they stopped at Buffalo Creek for over an hour. In contrast, she told Mr Riley that she and the applicant went to Buffalo Creek after they had driven around for two hours. She told the police that she drank all of the Johnny Walker and she told the police and Mr Riley that all of the alcohol was gone by the end of night. However she told the tribunal that she was sure that both bottles were not finished. She told the police that she only drank the Johnny Walker. However, she told the tribunal that she brought two bottles of drink because she liked to mix the flavours around a bit. She told Mr Riley she did not remember how the accident happened. She told the police that she drove to Buffalo Creek. She told the tribunal and Mr Riley that the applicant drove to Buffalo Creek. She told Mr Riley that she could not recall if it was the applicant or her that used the screwdriver to start the car before they left Buffalo Creek. She told the tribunal that the applicant started the car with the screwdriver.

[39] While it is important to recognise that delay in complaining does not necessarily indicate that an allegation of unlawful sexual intercourse is false and that there may be good reasons why a victim of a sexual offence may hesitate in complaining about it, there are circumstances such as the present case where the overall conduct of the complainant is simply totally inconsistent with the allegations that she has made. Here the person who claims to be the victim not only does not make a complaint but she feels sorry for the alleged attacker and guilty about a car accident which she alleges was caused by him, she corresponds with the alleged attacker and she keeps his letters to her, she speaks to him on the telephone in a friendly manner very shortly after a motor vehicle accident in which she is very seriously injured as a result of the alleged sexual assault on her, she seeks counselling about her drunkenness but not about being attacked, she pleads guilty to serious offences in the Court of Summary Jurisdiction on the basis that she is responsible for what occurred, and on her version of events she tells a false story to the police about what occurred in which she blames not the alleged attacker but the light conditions and defects in the car for the accident and she is prepared to give evidence on behalf of an insurance company but not to make a complaint to police in her own right.

[40] I do not accept the evidence of Ms Griesebner. She was a substantially unreliable witness whose version of events changed over time. Her evidence did not have a ring of reality about it.

The evidence led by the applicant

[41] The applicant gave evidence himself. The applicant also tendered Ms Griesebner’s certificate of conviction for the four offences for which she was convicted following the accident, her recognizance to be of good behaviour, the record of interview between the police and Ms Griesebner, the signed statement of Ms Griesebner that was taken by Mr Riley and a whole of person permanent impairment assessment by Dr Millons.

[42] The applicant’s evidence is summarised as follows. He was born on 11 July 1972. He now lives in Altona North in Victoria. He completed the equivalent of year 10 high school in the Solomon Islands. He qualified as a marine engineer in the Solomon Islands. He came to Darwin in 1998 and ended up working for a firm called Quick Wall as a plasterer. He left Darwin in 1999 and went to Brisbane. He returned to Darwin in 2002. He is married and he and his wife have seven children. He has separated from his wife from time to time and he has had a relationship with Tanya Chilly. He and Ms Chilly have four children.

[43] In 2003 the applicant was living in Malak with his wife with whom he had reconciled. Prior to Christmas 2002 he met Helena Griesebner. He met her through his friend Joseph. On 16 January 2003 he spoke to Ms Griesebner on the telephone and they agreed to meet up and go for a drive. He was to pick her up at her place in a blue Holden Commodore station wagon that was owned by Tanya Chilly. It was originally a car that belonged to him. However, while he was living in a de facto relationship with Ms Chilly he was disqualified from driving and he agreed to give the car to Ms Chilly. She was also living in Darwin in 2003. He had an understanding with Ms Chilly and a practice had developed whereby he could use her car for his own purposes. He would use the car every now and then to see his children, to go shopping, to the park and to the beach. In return if the car needed to be fixed he would take the car and fix it.

[44] On or about 15 January 2003 the applicant picked up Ms Chilly’s car from her home. He told her that he was going to use the car and that he would fix the ignition. At night on 17 January 2003 he drove the car to Ms Griesebner’s father’s house so they could go out. He does remember if she drove the car from her house when he picked her up or if at some later stage during the night she drove the car. He told her that he was disqualified from driving and he asked her if she could drive. Ms Griesebner said that she had a licence and she could drive. After Ms Griesebner got in the car they went for a drive and then they went to Buffalo Creek where they started drinking. When they got to Buffalo Creek they stopped at a barbecue where there were some benches. They got out of the car and sat on the benches. However, there were mosquitoes so they got back into the car and drove down near the boat ramp. They were drinking while they were at Buffalo Creek. Ms Griesebner brought the alcohol. They were at Buffalo Creek most of the night and they drank most of the night while they were at Buffalo Creek. They were at Buffalo Creek for a longer period of time than they had driven around. They listened to the radio in the car and they were drinking away. They were kissing while they were seated in the car. He was on the passenger side. After they were kissing in the front they decided to get into the back of the car. It was his suggestion that they go to the back of the car. He made the suggestion because it was awkward kissing in the front seats of the car. At no stage did Ms Griesebner disagree with his proposal to get into the back of the car. They both got into the back of the car through the rear left hand door. Ms Griesebner got onto the back seat first. She was lying down so that they could not close the one door. Her legs were sticking out of the door. She tried to remove her shorts and he assisted her because she was struggling a little bit. He could not have penile intercourse with her because he was too drunk. So he started having oral sex with her. She did not object to that in any way. She did not wriggle or twist to avoid his attention. She did not push him off. She had her hands on his head and she was pushing his head towards her private parts and she was making noises. She told him that she had not felt like that before and she really enjoyed it. He had oral sex with her for about 20 minutes. She demonstrated that she was having an orgasm. When she subsided he said let’s go back to the front seat and play some more music. They kissed again and then returned to the front of the car. She returned to the driver’s seat where she had been seated previously because she had been driving. They tilted the front seats backwards and they nodded off to sleep. It was still dark when they nodded off to sleep. The next thing he remembered was being woken by the sun as it was coming up. You could see the red from the mangroves. When Ms Griesebner woke up she said that they should “take off”. He said that they should go and sleep some more. He felt drunk and lazy. Ms Griesebner said, “It is alright. I can drive back.” He said, “Okay? You alright? You can drive if you want.” He put his chair up and put his seat belt on. She started the car. She was on the driver’s side. He was not concerned about her driving. While she was driving he fell asleep again. The next thing that he remembers was waking up in hospital. He does not remember any of the circumstances surrounding the accident. He denies sexually interfering with Ms Griesebner while she was driving home.

[45] The first contact he had with her after the accident was on the telephone while they were in hospital. He agreed that he wrote three letters to Ms Griesebner. He wrote them because he thought that they had started having an attraction towards each other. They met in person while they were both still in hospital. They met down stairs. They were both in their wheelchairs trying to get some fresh air. They also saw each other after he discharged himself from hospital. She never blamed him for the accident or accused him with interfering with her while they were driving along or of forcing himself on her sexually.

[46] The applicant admitted that he asked Ms Griesebner to change her story and to say that she did all of the driving. However, he admitted that was not true. He asked her to change her story because at that time of the accident he was disqualified from driving. He was afraid of being prosecuted for driving while disqualified.

[47] During his cross examination the applicant gave the following evidence. Ms Chilly did not know that he was taking Ms Griesebner out in her car. However, if he needed to take the car out he just took it. He did not give Ms Chilly any reason for taking the car. He admitted that he knew when they drove to Buffalo Creek that someone would have to drive back, that he knew he was drunk before he left to go to Buffalo Creek and he was aware of the dangers of drunk driving. The applicant admitted that a lot of what he said in his statement that was taken by Mr Riley was not true. He said that the reason he told the lies in that statement is that he did not want to get into trouble with the police for driving while disqualified. He agreed that he also asked Ms Griesebner to lie on his behalf by saying that he did not drive at all on 17 January 2003. The reason for this was also to try and avoid getting into trouble with the police for driving while disqualified. He first spoke to Ms Griesebner about changing her story after he had discharged himself from hospital. It was about the time that someone came and took a statement from him. The applicant stated that he knew where Ms Chilly lived and that he had spoken to her before coming to Darwin for the tribunal hearing. He had no difficulty contacting her. He admitted that she was very angry after the accident. He said that she was very angry because the car had been smashed up. He denied that she was angry because he had allowed Ms Griesebner to drive the car. He was not asked by Mr Nosworthy if Ms Chilly was able to come to court. Nor was he cross examined about what Ms Griesebner said he did to her in the car immediately before the accident.

[48] Although the applicant also made a statement prior to giving evidence that was substantially different to his evidence before the tribunal he gave a frank and satisfactory explanation as to why he had made the prior inconsistent statement to Mr Riley. His motive for doing so was to avoid prosecution for driving while disqualified. It was a motive that he had from the time of his first interview following the accident. That this was his only motive is supported by the evidence of Ms Griesebner who said in substance that the entire change that the applicant wished her to make to her version of events was to say that she came to get the car and that he did not drive at all during the night and early morning prior to the accident. It was a powerful motive given that he had been prosecuted for similar offences prior to the accident. In addition, his evidence before the tribunal was essentially consistent with what Ms Griesebner had told the police and had told Mr Riley. He did not need to tell Mr Riley that he had oral sex with the applicant while they were at Buffalo Creek. That event was simply a private matter that was irrelevant to the cause of the accident on his version of events. The applicant was not defensive during cross examination. He gave his answers spontaneously and he freely made admissions in relation to a range of matters that were put to him.

[49] I prefer the evidence of the applicant to that of Ms Griesebner. His position has been consistent over time.

Findings of fact

[50] I make the following findings of fact. On or about 15 January 2003 the applicant picked up Ms Chilly’s car from her home. The car had previously belonged to the applicant. He picked the car up pursuant to an understanding and practice that had developed with Ms Chilly whereby he could borrow the car for his own purposes. In return for borrowing the car he would arrange for repairs to be done to the car from time to time. There were no limitations on what use the applicant could make of the car. On 17 January 2003 at 1.00 am the applicant drove to Ms Griesebner’s father’s house. He picked her up in the car and they went cruising around the Casuarina area. After they had driven around for about one to two hours they drove to Buffalo Creek. They remained at Buffalo Creek until about 7.00 am. Both Ms Griesebner and the applicant drank alcohol during the time that they cruised about the Casuarina area and while they were at Buffalo Creek. When they got to Buffalo Creek they stopped at a barbecue where there were some cement benches. They got out of the car and sat on the benches. However, as there were mosquitoes they got back into the car and drove down near the boat ramp. They kissed in the front seat of the car, drank alcohol and listened to the radio. After they were kissing in the front seat of the car they decided to get into the back of the car. While they were in the back of the car the applicant had oral sex with Ms Griesebner. The oral sex was consensual and not unlawful. After the applicant had finished having oral sex with Ms Griesebner they got back into the front seats of the car. Ms Griesebner sat in the driver’s seat. The applicant sat in the passenger’s seat. They nodded off to sleep. Ultimately they were woken by the sun rising. When Ms Griesebner woke up she said to the applicant that they should take off. She said it was alright and that she could drive back. The applicant agreed that she could drive the car home. The applicant put his chair up and put his seatbelt on. Ms Griesebner started the car with the screw driver and she left the Buffalo Creek area driving the car. While she was driving the applicant fell asleep again. He did not sexually interfere with Ms Griesebner while she was driving along Lee Point Road before the accident. While Ms Griesebner was driving along Lee Point Road she lost control of the steering wheel of the car, the car veered off the road and collided with a light post. It is unclear whether Ms Griesebner lost control of the car as the result of the speed of the car, her inexperience as a driver or her intoxication with alcohol, or a combination of all three. At all material times the applicant believed that Ms Griesebner had a driver’s licence and was capable of driving. He did not give much consideration to her assurance to him in the morning prior to the accident that in effect she was sufficiently sober and capable of driving home. He accepted her assurance in circumstances where she had driven safely earlier on in the morning of 17 January 2003.

[51] The applicant sustained a loss of earning capacity as a result of the accident between 17 January 2003 and 14 June 2004 and he has suffered a 7 per cent loss of permanent impairment of the whole body.

Consent of the owner

[52] I find that the use the applicant made of the car at the time of the accident was not without the consent of the owner. Although the applicant admitted that Ms Chilly was very angry after the accident and no doubt she was angry about both the damage which was done to the car and the fact that Ms Griesebner was driving the car, such anger does not establish that she did not consent to the applicant using the car in any manner that he chose when he had possession of the car.

[53] Further, the onus was not on the applicant to call Ms Chilly. He did not bear the burden of proof in relation to the issue of consent to use the motor vehicle. The respondent did. The applicant gave direct evidence that he had Ms Chilly’s consent to use the car for his own purposes. It was not necessary for him to corroborate his version of the events. The gap in the respondent’s evidence could not be filled by an inference to be drawn from the applicant’s failure to call Ms Chilly: Jones v Dunkel (1959) 101 CLR 98 at 312 per Menzies J. Rather than track down Ms Chilly and clarify her evidence, the respondent elected to proceed with its case on the basis of what the applicant said to Mr Riley.

[54] In the circumstances of this case in order for the respondent to succeed it would be necessary firstly for there to be clear evidence from Ms Chilly that she did not consent to the use which the applicant was making of the car at the time of the accident and for her to have been called to give this evidence. It is apparent from what was said at the bar table by Mr Nosworthy about the respondent’s knowledge of Ms Chilly’s evidence that the respondent’s designated person was not in a position to refuse the applicant’s application on the basis that the applicant did not have Ms Chilly’s consent to use the car.

[55] The position may have been different if the applicant did not give evidence about the understanding and practice that had developed between him and Ms Chilly.

Section 154 and s 192(3) of the Criminal Code

[56] I find that the applicant did not commit a dangerous act nor did he have or attempt to have unlawful sexual intercourse with the applicant. The applicant did not sexually interfere with Ms Griesebner while she was driving along Lee Point Road.

[57] The relevant use of the motor vehicle is the applicant being a passenger in the car while it was being driven from Buffalo Creek to the intersection of Lee Point Road and Fitzmaurice Drive. On both Ms Griesebner’s and the applicant’s evidence it is clear that they were not drinking while the car was being driven along Lee Point Road. It was Ms Griesebner who suggested that she drive home. Otherwise the applicant was content to sleep it off before going home.

Section 9(1)(e) of the Act

[58] Section 9(1)(e) of the Act was introduced for the purpose of exempting persons from benefits where they deliberately behave recklessly and cause substantial risk to themselves in motor vehicles: Second Reading Speech, Hansard 12 May 2000. There are four elements that have to be proven to establish the exemption from benefits created by the section. First, it must be established that the person claiming benefits was using a motor vehicle. Secondly, the use must be in such a manner that it creates a substantial risk of injury to the person. Thirdly, the person must consciously and unjustifiably disregard the risk. Fourthly, and alternatively, the person must be recklessly indifferent to the substantial risk of injury that is created by the manner in which he is using the vehicle. Whether the elements of the section are made out is a question of fact. A substantial risk is a large and appreciable risk. However, it is also necessary to have regard to the nature and extent of any injury that falls within the risk created by the manner of use of the motor vehicle.

[59] There is no issue between the parties that the applicant was using the car: Pollard v Territory Insurance Office (1997) 6 NTLR 142. The requirement that the person must consciously and unjustifiably disregard the risk or must be recklessly indifferent to it means that the risk must be clearly foreseen by the person. In order to appreciate the relevant risk it is also necessary to have some understanding of what caused the accident.

[60] As to whether there was a substantial risk of injury created by the manner in which the applicant used the motor vehicle, the issue in this case is whether the applicant, being a passenger in a car driven by a 17 year old who had consumed a considerable amount of alcohol during an all night outing, was a use of the motor vehicle that created a substantial risk of injury to him or whether the substantial risk of injury was created by the speed at which Ms Griesebner was driving or both her intoxication and the speed at which she was driving or some other factor.

[61] There is little doubt that drinking and driving may be dangerous. However, there is no general rule that such conduct invariably creates a substantial risk of injury. Much will depend on factors such as the degree of intoxication of the driver, the person’s tolerance of alcohol, the experience of the driver, the condition of the road, the weather conditions, the speed at which the car was travelling and the volume of traffic.

[62] In this instance it is not clear what caused the accident or what created the risk of an accident. It was not caused by the applicant sexually interfering with Ms Griesebner. No evidence was led by the respondent that Ms Griesebner was incapable of driving the car because of her blood alcohol reading or that she did not appreciate the speed at which the car was travelling because of how much alcohol she had consumed. Her evidence was that if she had not been sexually interfered with by the applicant she was capable of driving. The applicant was not cross examined on the basis that he must have been conscious that Ms Griesebner was incapable of driving the car safely. In any event he made no such admission. Consequently, it was not proven that the applicant’s use of the car created a substantial risk of injury or that he consciously and unjustifiably disregarded the risk or that he was recklessly indifferent to it. The applicant was certainly justified in not driving himself in view of his assessment of the extent of his intoxication. I am unable to find on the balance of probabilities that the elements of s 9(1)(e) have been made out by the respondent.

Orders

[63] I make the following orders:

(1) The decision of the Board of the Territory Insurance Office is set aside.

(2) The respondent is to pay the applicant section 13 benefits in the sum of $32,831.37.

(3) The respondent is to pay the applicant section 17 benefits on the basis that he has a 7 per cent permanent impairment of the whole man.

(4) The applicant is entitled to benefits in accordance with section 18.

[64] I will hear the parties as to costs and interest.