Whitley v Ryan[2010] QSC 210

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  There are two actions for personal injuries before me, one by Mr Whitley and the other by his wife, and they were heard together. 

The basic circumstances may be set out at once.  I make the following findings on the basis of admissions or because the conclusions are in my view either uncontroversial or clear-cut. 

At about 5 p.m. on the 26th of July 2007 the plaintiffs were the passenger and driver respectively in the front seat of a white 1997 Mazda panel van which was in a northerly direction on the New England Highway north of Toowoomba towards Highfields.  The second defendant was the owner of a Ford Courier super-cab utility registration number 241-HSI.  The third defendant was the licensed compulsory third party insurer of that utility.  The fourth defendant is, of course, the Nominal Defendant.

Mr Whitley was driving in the right-hand lane of the highway which at that point was a four-lane divided highway with a median strip.  The weather was fine, the sun was low but not yet set, visibility was clear, the road was possibly in shadow from trees or distant mountains and most vehicles did not yet have their lights on.  Near Mount Kynoch, in a 80 kph zone, Mr Whitley saw in his rear vision mirror a four-wheel drive utility approaching from behind him and in the same lane.  It was a high-set vehicle of a colour described variously by witnesses but resembling generally burnt orange.  It had metal iridescent paint.  It was fairly new, not more than five years old, and clean and polished.  It had a dual cabin, by which I mean two rows of windows, and either two rows of seats of some description or one row of seats and a cargo compartment in the cabin where a second row would be.  It had a style back.  A style back is a cargo area at the rear of the utility comprised of a compartment which is part of the manufactured vehicle.  It had, in other words, fixed sides and a drop-down tailgate at the rear but not a back with moveable sides or a detachable tray.  It had some sort of metal protective bar at the front, either a bullbar or a nudge bar, and I will say a little more on that later.  It had a standard, that is a non-personalised, numberplate.

The driver of the utility was a large, thickset man with dark hair and a goatee-type beard.  He was aged about 30 to 40 and was wearing a fluorescent-coloured shirt or vest.  The utility was either the second defendant's Ford or another utility which cannot be identified after due inquiry and search.

The utility travelled extremely close to the rear of the Mazda van and attempted to overtake it on two occasions in two right-hand turning lanes.  There is some disagreement about precisely where this occurred but that is of no consequence.  There was neither time nor space for Mr Whitley to move the Mazda to the left-hand lane to enable the utility to overtake as there was heavy traffic on the highway and the left lane was fully occupied.  From time to time the driver of the utility was flashing its lights and sounding its horn. 

At a point slightly north of where the 80 kilometre-per-hour zone turned into a 100 kilometre-per-hour zone, the utility moved into the left-hand lane and overtook the van.  When its rear was about level with the front of the van it swerved into the right-hand lane closely in front of the van and braked heavily.  As it passed the van the driver put his arm out the window and gestured at the van.  Mr Whitley applied the brakes of the van and swerved to the right to avoid a collision causing two of the wheels of the van to travel onto the median strip.  It then collided with trees and vegetation on the strip and rolled onto its side.  It skidded down the road, somehow not colliding with any other vehicle, and came to rest in the left-hand lane of the northbound carriageway. 

The utility did not stop but continued north for about a half a kilometre to a kilometre.  It then either executed a U-turn onto the southbound half of the highway or turned east off the highway into a set of cul-de-sacs. 

The accident was caused by the negligence of the driver of the utility.  It is unnecessary to specify the particulars which were pleaded and were not controversial. 

As a consequence of the accident, both plaintiffs suffered personal injuries, loss and damage. 

The second defendant's Ford vehicle was in the possession of the first defendant, Mr Ryan, at all material times.  He had the right to and did use it for private purposes, including travelling to and from his place of work in Toowoomba.  He lived in Buena Vista Avenue, Blue Mountain Heights, which was reached by turning east off the New England Highway at Murphy’s Creek Road, a short distance south of the scene of the accident. 

The plaintiffs claim compensatory damage from one or other of Suncorp and the Nominal Defendant.  The claim against Suncorp is made on the basis that it was the second defendant's Ford, driven by Mr Ryan, which was the utility involved in the accident.  The claim against the Nominal Defendant is made on the basis that it was not that vehicle.  It is common ground among the parties that the plaintiffs must succeed against one or other of those two defendants.  In addition, the plaintiffs claim exemplary, punitive and aggravated damages against Mr Ryan. 

At the hearing Mr Ryan appeared unrepresented.  Solicitors had been acting for him until shortly before the trial.  They had on his behalf filed a non-complying defence, that is, a defence which did not comply with the provisions of the Uniform Civil Procedure Rules.  It denied virtually everything without reason given, but because by the time the matter came before me Mr Ryan was unrepresented no steps were taken to attack that pleading. 

The second defendant, the owner of the vehicle, did not appear at the trial.  The plaintiffs, Suncorp and the Nominal Defendant were represented by counsel. 

I was informed at the outset that quantum of compensatory damages had been agreed among the parties.  The only issues were, was the utility involved in the accident that of the second defendant, and exemplary damages. 

It was accepted on all hands that if the vehicle was that of the second defendant, then it was being driven by the first defendant. 

Both the plaintiffs and the Nominal Defendant submit that the offending utility was the Ford, that is, the Ford owned by the second defendant.  The third defendant, Suncorp, submits that I could not be satisfied of this and that the evidence points toward another vehicle being involved.  Mr Ryan made no submissions.

I turn to the evidence.  The first issue which is in my judgment important is the shirt which was being worn by the driver of the utility.  I have already found that it was a fluorescent-coloured shirt or vest. Mr Whitley gave evidence that he saw the shirt and that it was a yellow colour with blue trimmings around the shoulders and the collar.

Another witness to the action was Mr Jonsson. Mr Jonsson was a university student or graduate who was driving his motor car in the same vicinity as, and who witnessed, the accident.  He gave evidence and made statements about what he saw.  He said that when he was travelling at about 5.15 p.m. along the highway in the left-hand lane he saw the van and the utility coming from behind him in his side mirror in the right-hand lane.  The utility was tailgating the van, very close to the van.  They travelled up the southern slope of Mt Kynoch and down the northern slope.  The behaviour of the van lead Mr Jonsson to slow down until the utility was in front of him.  He then saw the accident.

In the course of the lead-up to the accident he had a brief opportunity to see the driver.  He told police who interviewed him first at the scene of the accident that the colour of the driver's fluorescent shirt was yellow, and he repeated that statement in a formal written statement given to the police on the 13th of August, some fortnight or so after the accident.  About a year later he was interviewed by an investigator for an insurer and told the investigator that the colour of the shirt was orange, and in evidence he said it was orangey or yellow.

The other witness who gave evidence about the shirt was Ms Rafter.  She was the driver of a vehicle which was travelling south on the highway, who saw the van and the utility approaching from the south, and saw the accident.  She made no mention of seeing the shirt to the police when interviewed by them in 2007, shortly after the accident, but when interviewed in May 2008 by the same investigator, told him that she would have noticed if the driver was wearing a fluorescent shirt.  She said he was wearing an ordinary shirt, but she did not know what colour.

Against those statements it was therefore surprising to hear her saying in evidence that the driver was wearing an orange iridescent shirt. 

Weighing the evidence of those three witnesses, I am satisfied that the driver was wearing a yellow fluorescent shirt.  Mr Whitley had a good, if brief, view and was consistent in his statements and his evidence.  Mr Jonsson also had a close-ish view and said that the shirt was yellow at and shortly after the time of the accident.  I reject Ms Rafter's evidence.  It is inconsistent with her statement to Mr Gray.  She was in a poor position to see and she has been demonstrated to be unreliable on other matters, like the colour and condition of the utility.  I find that the colour of the driver's shirt was yellow. 

That is a finding of some importance.  Mr Ryan was supplied with a yellow fluorescent shirt with blue trim as part of his employment by the second defendant.  The shirt with its trim is a good match of Mr Whitley's description, which has, as I have said, always been consistent.

One issue at the trial was whether Mr Ryan might or might not have been wearing the yellow shirt on the day of the accident.  In his evidence he claimed that he could not remember if he wore it on the 26th of July 2007.  He testified that he rarely wore it and would only wear it if he knew he would be doing dirty work to help out those subordinate to him.  He was employed as production manager by a powder-coating factory.  He testified that if he did wear his yellow shirt, he would shower before going home, and by implication he would change his shirt, because his employer did not want the utility getting dirty with the powder which would coat people on the factory floor.

Mr Van Tricht, the owner of the second defendant, testified that Mr Ryan would only wear the shirt when working on the factory floor and that generally that would happen only before or after normal office hours.  Mr Ryan would change his shirt when he came into the office to work in the office.

When shown Exhibit 6, the photograph of Mr Ryan at his desk in the yellow shirt during cross-examination, Mr Van Tricht said that Mr Ryan would wear the shirt at his desk if he also had factory work that day.  He said that normally Mr Ryan wore a chambray shirt and that company policy was for him to wear that shirt when representing the company or doing office work, for example, computer research.  He said that Mr Ryan would be expected to change the yellow shirt before driving home because it would be extremely dirty. 

He produced printouts of computer records which showed that Mr Ryan used his computer between 4.06 and 4.20 p.m. on 26 July 2007.  The records also showed that Mr Ryan modified an employment rejection template letter at about 4.20 p.m. that day, so Mr Van Tricht inferred that Mr Ryan would likely have been interviewing applicants for a job on behalf of the company earlier that day and therefore not been wearing a yellow shirt.  A job had been advertised on the internet a few days earlier.  Mr Ryan testified that he kept his yellow shirts at home and decided whether to wear them in advance of coming to work.

I thought Mr Van Tricht was very protective of Mr Ryan and that he shaped his evidence to help Mr Ryan.  In my judgment I must be careful before accepting that evidence.  I take into account in reaching that judgment the inconsistency in Mr Van Tricht's evidence regarding Mr Ryan's changing out of the shirt if he came into the office.

The evidence shows that Mr Ryan wore the yellow shirt when driving and when doing company work in public on the 4th of September 2007.  No evidence has been put before me on behalf of the first three defendants to explain why Mr Ryan would have been doing so.  It is pure chance that there was evidence of him wearing the yellow shirt on that day, but there is no doubt that he was wearing it as, indeed, he himself admitted.  It gives the lie to the theory that Mr Ryan would not wear the shirt in public or if he were representing the company.  In addition, the photograph, Exhibit 6, depicts Mr Ryan at his desk wearing the shirt.  The photograph originally came from the files of the second defendant and it is unclear who took it or when, but it does show Mr Ryan wearing the shirt at his desk.

On all the evidence, I find that Mr Ryan could easily have been wearing the yellow fluorescent shirt with the blue trim on the 26th of July 2007.

I turn to the issue of the brand of the utility which caused the accident.

Mr Whitley was unable to say what the brand of the vehicle was.  He himself was a little surprised at that if it were the case that the utility was a Ford because it had a Ford badge on its rear tailgate which, for a brief period, was straight in front of Mr Whitley's view.  Mr Whitley was surprised that he did not see that badge if it were there.  Nonetheless, it must be acknowledged that he saw the rear tailgate only for a brief moment before the utility applied its brakes in front of the van and gave Mr Whitley a series of demanding and shocking things to have to do.

Mr Jonsson, interviewed at the scene after the accident, said that the utility was possibly a Holden, but in his subsequent statement to the police, he said it was a Mazda.  He had done a university assignment on Mazdas and nothing had happened in the interim except he had thought about the shape of the vehicle.  He based his assessment on the size of the rear compartment, which was a little smaller than normal, and the size of the doors to that compartment.

It is common ground that the Ford owned by the second defendant is simply a re-badged Mazda.  They are made in the same factory, they are virtually identical except for minor items of trim and decoration, and, apart from those accessories or a knowledge of the colours in which they come, it is impossible to tell them apart.

Ms Millard, another witness who was driving in the northbound right-hand lane of the highway ahead of the vehicles involved in the accident, saw the utility in her rear-vision mirror.  She saw it after the accident, which she also saw in her mirror.  She thought it looked like a Nissan Navara in shape.  She professed no expertise about motor vehicles.

Ms Rafter, to whom I have already referred, thought that the utility was a Toyota but was "not real sure".

Of those witnesses, I find the evidence of Mr Jonsson the most convincing on this point.  I accept it.  That evidence demonstrates that the utility was either a Ford or a Mazda.

Suncorp sought to show that the utility must have not been the Ford by pointing to a number of features of the Ford which witnesses did not see.  The first was its roll bar.  No witness noticed it, yet, according to Mr Carr, who worked in the Ford dealership, the roll bar was distinctive. 

Second, no witness noticed a series of large decals toward the rear of the side panels of the tray of the Ford on each side.  They announced that the vehicle was four-by-four and a Hurricane vehicle.  They were distinctive and neither Mr Whitley nor Mr Jonsson noticed them. 

Third, Suncorp referred to the bullbar on the Ford.  Mr Whitley said that he saw a bullbar but there is some evidence in his interview with Mr Gray, the insurance investigator, to suggest that he was not sure of this until shown a photograph of the Ford.  Mr Jonsson did not notice a bar at the front of the vehicle.  Ms Millard saw the front of the vehicle in her rear-vision mirror and thought that the bar at the front was a nudge bar not a bullbar.  A nudge bar is a central bar at the front of the vehicle but does not extend the full width of the vehicle.

Fourth, Suncorp submitted that no witness saw the snorkel, that is, the elevated air intake and pipe on the left side of the Ford.  That submission was made with particular reference to Mr Jonsson.  Suncorp seemed to concede that the other witnesses may not have been in a position to notice that feature.

Finally, Suncorp pointed out that no witness saw the chrome step or running board at the side of the Ford.  Mrs Whitley and Mr Jonsson would have been in a position to have seen that.

It is always difficult, of course, to make identifications by reason of what a witness has not seen.  The fact that something is not noticed or remembered by a witness does not prove that it was not there. 

To deal with the features relied on by Suncorp: first, I would not find it surprising that no-one specifically noticed a roll bar, even one which the dealer said was distinctive.  Roll bars are common on such vehicles.  It would not, in my judgment, be a matter which anyone would think particularly distinctive.

Second, it is surprising that neither Mr Whitley nor Mr Jonsson should have noticed the decals and that Mr Jonsson did not notice a snorkel.  The decals are distinctive and the snorkel is a substantial feature.  However, the decals were at the tail end of the side panels and the drama followed very quickly after Mr Jonsson would have had the opportunity to view them.  Indeed, as Mr Jonsson himself pointed out, he did not even notice the decals when he saw the Ford in December 2007, some months later.  There seems no doubt that it was the Ford which he saw in that month.

I do not find it surprising that Mr Jonsson did not notice a bullbar.  Bullbars are common in rural areas and would not be a point that one would necessarily give conscious consideration to.  Mr Whitley saw it, and I accept his evidence.

Its appearance can be seen from the first photograph in exhibit 24.  It comprises a centre section which looks like a nudge bar with side sections which Mr Dickson of counsel described as wings.  When one looks at the photograph one can see that an observer who has only a brief opportunity to see the front of the vehicle under conditions of difficulty could miss the wings and mistake the bar for a nudge bar.  That, I think, could be the explanation for Ms Millard's failure to see the wings if the vehicle were indeed the Ford.  I do not think her identification of the bar as a nudge bar excludes the Ford as the utility involved in the collision.  She herself conceded that she could have made a mistake on this matter.

I do not find it surprising that no-one should have noticed any running board which was there.  The running boards were neither distinctive nor at the centre of view. 

Those, then, were the features, it was submitted, would have been noticed had they been there. 

There was only one witness who saw something which would positively exclude the Ford.  That witness was Ms Millard.  She said in September 2007, and she maintained her evidence at all times since, that the numberplate was green and white, not maroon and white.  The Ford had maroon-white numberplates.  Ms Millard was quite firm about this point, and her evidence carries credibility because she studied the numberplate in the period after the accident trying to decipher the letters and numbers in her rear vision mirror.  She had about a half a kilometre to a kilometre of travel at 100 kilometres per hour before the utility turned right off the highway and that was sufficient to give her time to observe the colour of the numberplate.  It also gave her the opportunity to focus specifically on the plate.  Her evidence, therefore, is strong evidence against the utility being the Ford. 

I turn to the identification evidence.  In December 2007 Mr Jonsson was driving to work when he saw the Ford about two kilometres from Harlaxton near Toowoomba.  There is no doubt that on this occasion what he saw was indeed the second defendant's Ford.  He obtained the registration number of the vehicle.  Interestingly, he again thought it was a Mazda despite the Ford badge on it.  He saw the driver on two brief occasions during that encounter, once when the driver was travelling in the same direction as he, the other when the Ford turned off the road. 

Mr Jonsson testified and stated to the police at the time that he recognised the driver as the man who was driving the utility at the time of the accident.  The driver on this occasion was Mr Ryan. 

The difficulties of identification of an individual on the basis of a previous short sighting of the person when the person is a stranger to the putative identifier are well known.  The whole issue of identification has been discussed at some length in Domican v The Queen (1992) 173 CLR 555. Of course, that was a case of identification in a criminal case and does not in terms apply in the present situation.  However, many of the things which were said in that case about identification are relevant whether the legal proceedings be civil or criminal.  I take them into account in assessing the identification evidence. 

What was said of identification of a person is even more true of identification of a motor vehicle.  The human eye is much more able to identify differences in people or at least people of the same ethnic background as the observer than it is able to identify differences between similar looking motor vehicles.  In one sense the fact that Mr Jonsson saw both the motor vehicle and the driver and identified each of them as having been involved strengthens the identification.  It is less likely that the combination of similarities would occur at the same time in the same general area.  But in another sense the combination weakens the evidence.  Seeing a similar looking utility could well have influenced Mr Jonsson in making his personal identification of the driver.  The possibility of an unconscious supposition cannot be ignored.  I shall, therefore, give this identification evidence some weight as corroboration but the weight must be limited. 

Mr Jonsson subsequently reported his observations to the police and was invited to participate in a formal identification process of the driver using a standard police photoboard.  On the photoboard police included a photograph of Mr Ryan along with 11 other photos. 

Mr Jonsson studied the photographs carefully and immediately picked out Mr Ryan as the driver of the vehicle involved in the accident.  He also, when asked subsequently during the identification process if there was anyone else of interest on the board, picked out another person who was not involved but, who, it must be said, looks quite similar to Mr Ryan.  He did that only after the subsequent question and after he had firmly identified Mr Ryan.

The photoboard identification carries with it the sorts of problems that I have already referred to and which were discussed in Domican, but it also has the additional difficulty that there is the possibility that, really what Mr Jonsson was identifying was the person whom he had seen in December rather than the person whom he had seen at the accident.  The way the human mind works in the process of identification is not clearly known, but what is known is that the process can be very unreliable.  I do not think that the photoboard identification can be given any great weight. No doubt, it must be given some weight, but it is not, in my judgment, a critical point.

There were also identifications by a number of witnesses made to the investigator, Mr Gray, based on photographs shown to the witnesses, either of the vehicle or of Mr Ryan.  But the identifications were either tentative or were made in circumstances which persuade me that no weight should be given to them, except perhaps as a ground for further investigation.

I turn from the question of identification evidence to the events of the 4th of September 2007.  On that day Mr Ryan was driving the Ford, wearing his yellow fluorescent shirt, when it collided with a utility parked opposite the premises of the second defendant.  Mr Ryan acknowledged that the collision was his fault.  He said his mobile phone had rung, he had bent down to pick it up and his utility had deviated from its course and collided with another utility parked outside premises across the road from the factory.  The collision knocked the parked vehicle about 10 metres up onto the footpath.  It damaged it beyond economical repair.  After a brief pause, Mr Ryan drove his utility from the scene of the collision and parked it in the second defendant's premises in the parking area, but out of sight of the road.

Unknown to him, there had been a witness of the collision and that witness went after Mr Ryan and confronted him in the premises of the second defendant.  Mr Ryan voluntarily returned with the witness to the scene of the accident where he encountered Mr Abbott, the owner of the vehicle.  There was a discussion between them.  Mr Abbott suggested calling the police.  Mr Ryan's response was set out in Mr Abbott's statement, Exhibit 53.  I quote from page 6:

"He told me that he was going to sort it out and pay for it all.  I suggested that because there was so much damage that maybe the police should be called.  At that time he flipped out.  He wasn't keen at all on the idea of calling the police.  He told me not to.  He strongly encouraged me not to and that he would sort it all out.  I agreed at the time but I soon realised that in my best interests it was to call the police.  One of my co-workers said it was probably the best idea to call the police.  I then told him again that maybe I should call the police and give them my statement and do it all legally.  He again strongly disagreed and told me not to be stupid and he would sort it out."

Mr Abbott did call the police.  Before they arrived Mr Ryan left his employer's premises.  When they arrived, his whereabouts were not known. 

The plaintiffs and the Nominal Defendant submitted, in effect, that Mr Ryan's conduct on that day showed a consciousness of guilt of his involvement in the accident in July.  They submitted that he was motivated by a desire to avoid the police seeing him and, if possible, his vehicle.  Suncorp submitted his conduct was equally consistent with a desire to avoid prosecution for driving without due care and attention in September.  That would be a convincing explanation if only it had been the rationale advanced by Mr Ryan in his evidence. However, when he gave evidence he did not seek to explain why he had been reluctant to have the police called.  He did not suggest that as a reason.  On the contrary, he denied that he had been reluctant to have them called. I do not believe this denial.  I accept the evidence of Mr Abbott.  I am satisfied that Mr Ryan wanted to avoid the very thing which happened when the police were called - the recognition of the utility as answering the description of the vehicle involved in the accident of 26th of July.

There is also Mr Ryan's unexplained departure from the premises.  After Mr Abbott said he would call the police, Mr Ryan left the premises and could not be found when police arrived.   In his evidence he at first suggested that he did this because Lyn, the officer manager, told him to go and sort himself out and she would take care of everything.  Later in his evidence he said he believed it was to do the company's banking.  However, he had earlier suggested in his evidence that banking is what he had been doing before the accident.  It appears from the evidence that in fact he went to Clifford Gardens and had some coffee, as that was what he was doing when his wife telephoned him later in the day to inform him that the police were looking for him.  No satisfactory explanation for his departure before the arrival of the police was given in evidence before me. 

Several of the matters to which I have already referred reflect on Mr Ryan's credibility.  It is necessary to deal explicitly with that question.  There was not much in his demeanour from which I was able to draw conclusions either way.  He had a poor memory of many events.  Some it is not surprising that he was unable to remember some events, but the extent of his forgetfulness was surprising.  For example, on the evening of the 4th of September, after hearing that police were looking for him, he went to the Toowoomba Police Station.  He was then interviewed about the July accident.  He was photographed and his vehicle was photographed.  He realised from what happened that he had a problem regarding that accident, yet he took no steps to find out what he had been doing or where he had been on the 26th of July.  He remained at this trial unable to recall anything about that.  One might have thought that only 40 days after the accident he would have been able to recover much information which today is not available.  I have already referred to his false answers about calling the police and the reason for leaving the premises.

There is one other matter which I think is relevant, although I do not think I can give it great weight.  In 2008 Mr Ryan attended the police station again, for a formal interview regarding the July accident.  He attended with his solicitor.  When asked questions about the accident, he refused to answer.  That was his right.  He said in evidence before me that he refused to answer on legal advice and that is what he said at the time.  However, the evidence before me does not disclose any explanation of why such advice was given.  One might have expected in circumstances such as Mr Ryan deposes to, if those circumstances had been the subject of instructions to his lawyer, that the advice would have been to give full and frank answers to the police.  No explanation for the reason for the advice was advanced.  Mr Ryan's lawyer was available to give evidence to the Court.  He was in fact in the precincts of the Court at the time such evidence could have been given.  I find it surprising that no such evidence was called.  Its absence makes it easier I think to draw inferences adverse to Mr Ryan. 

In summary, I did not find him to be a witness of credit. 

So I must weigh up the various bits of evidence one way and the other.  In my judgment, the balance of the evidence favours the conclusion that it was the Ford which was involved in the accident.  I find it too much of a coincidence to accept that another similar coloured iridescent Mazda or Ford dual-cabin utility would be at a place Mr Ryan was likely to be in his Ford at a time he could easily have been there to go home, with its driver wearing an iridescent yellow shirt with blue trim similar to the one Mr Ryan wore at work.  There is some corroboration for that conclusion in the identification evidence and in Mr Ryan's reluctance to see the police on the 4th of September.  His lack of credibility hampers my acceptance of his denials of involvement. 

That conclusion involves a rejection of Suncorp's submissions that the ute must not have been the Ford by reason of the features of the Ford which the witnesses did not see.  For the reasons already stated, I do not find those factors of great persuasive force.  It also involves a rejection of Ms Millard's evidence regarding the green numberplate.  Despite the force of this evidence, I find that Ms Millard was mistaken.  The utility was not more than five years old and it did not have personalised numberplates.  It could not have had green plates.  Exhibit 21 demonstrates that maroon characters on white backgrounds were introduced to vehicle numberplates in October 2001.  Green characters on white backgrounds ceased being manufactured in June of that year and ceased being issued in October.  Some green and white plates remain in use in Queensland on vehicles older than that date or on personalised plates but neither exception applies in this case.  In the shadows Ms Millard must've thought she saw green, the colour of her own plates.  She was mistaken.  

In conclusion, I find that the utility involved in the accident of the 26th of July 2007 was the second defendant's Ford driven by Mr Ryan. 

Consequently, there will be judgment for the plaintiffs in accordance with the agreed amounts.  For Mrs Whitley, there will be judgment against the third defendant for $350,000.  For Mr Whitley there will be judgment against the third defendant for $325,000.  Judgment is given for the fourth defendant against the third defendant on the notice claiming contribution given by the latter.  I order that each plaintiff recover costs against the third defendant to be assessed on the standard basis.  I order that the third defendant pay the fourth defendant’s costs of the plaintiff’s claim against the fourth defendant and the third defendant’s notice claiming contribution against the fourth defendant, to be assessed.

That leaves the exemplary damages claim.  Yesterday at the close of addresses, and just before the Court adjourned, Mr Ryan informed the Court through counsel for the third defendant that he had become bankrupt on his own application late last year.  Understandably, that caused the plaintiffs' counsel some consternation.  It was agreed that the question of exemplary damages against Mr Ryan should be reserved until the plaintiffs had the opportunity to investigate this claim and to make further submissions in relation to it in the event that it should be correct.

Consequently, I order that further consideration of the exemplary damages claim be adjourned to a date to be fixed.