Act with your head

Sunraysia Daily 6.08.09
By Allan Murphy

A Supreme Court jury has been asked to award "fair and responsible" damages to the mother of a man who was killed in unexplained circumstances in Mildura almost four years ago.
The jury is today expected to begin considering a verdict in the civil claim against the Transport Accident Commission (TAC) by Jennifer Shaw whose son Luke Ryan Shaw was found unconscious and lying in a pool of blood in Ninth Street in October 2005.

The trial has been told that while it was accepted that a vehicle and driver were involved in Mr Shaw’s death, the circumstances surrounding the fatal injuries were disputed.

Mr Shaw, 21, was found by a security guard in the early hours of the October 21, 2005, not breathing but still alive following a night out with friends and family at O’Malley’s Irish Tavern.
The last known sighting of Mr Shaw that night was about 3am near the intersection of Deakin Avenue and Ninth Street when he refused a lift from a friend who had stopped at the intersection for the traffic lights.

Mr Shaw suffered severe blunt head trauma after falling from a height onto the roadway and died less than 48 hours later when his life support system was turned off.
In his closing address to the jury yesterday, Terry Casey, QC, for Mrs Shaw, said evidence given during the trial had pointed towards "a logical conclusion" as to how the accident happened.

Mr Casey said it was probable that on his way to an address in Thirteenth Street where his was to spend the night, Mr Shaw accepted a lift from the driver of a vehicle who allowed him to climb into the rear of a utility or tray truck immediately before driving off and causing the deceased man to fall.

The prosecutor told the jury that when it considered the range of possible circumstances it must choose which was "most likely". Mr Casey said it was an "unlikely scenario" that Mr Shaw was pushed from the vehicle and "highly improbable" that he lost balance and fell while either entering or exiting the rear of the car. He said the car was more likely to have been travelling at slow speed from a stationary position, that the driver was likely to have observed that Mr Shaw was affected by alcohol, and that the driver was aware that Mr Shaw had fallen.

Mr Casey said it was also likely the driver stopped and saw Mr Shaw lying in a pool of blood before driving off or that they chose not to stop. The court was told it would have been "a most extraordinary thing" for the driver to be unaware that Mr Shaw had fallen.

"(That is) a very callous thing to do but people can be callous when they’ve done something wrong and don’t want to be caught," he said.

Mr Casey said that while "it beggars belief" that the driver who picked up Luke was ignorant of the accident, subsequent media coverage would have alerted the driver. "You would have to live the life of a hermit not to know," he told the court. He said if the driver had nothing to hide they would have come forward. Mr Casey said his was a "clear and obvious case of negligence against the driver".

However, Ross Middleton, SC, for the TAC, said there had been much speculation and many possibilities as to how Mr Shaw sustained his injuries.

Mr Middleton said witnesses in the trial had given evidence of "too many imponderables", likely and equal scenarios, "just too difficult to determine what happened" and the two theories being "pretty much a 50-50". "One becomes no more likely than the others," he said.

The counsel said that while it was admitted that a driver and vehicle were involved, it was not admitted that the vehicle was moving or the driver was negligent."In the end it’s a matter for you to decide," Mr Middleton told the jury. "Act with your head and not your heart."

Mr Middleton told the jury if it was unable to determine how the accident happened, whether the vehicle was moving or stationary, whether Mr Shaw fell or tripped, or if the driver even knew the deceased man was in the vehicle they should find the driver was not negligent.
In regard to damages, Mr Middleton said that while Mr Shaw’s death was "a tragedy in every sense of the word", his mother had not demonstrated severe psychiatric illness, but grief for the loss of her son and not knowing how or why the accident happened.

"She continues to look for answers in relation to this tragedy," he said. "She’s so focused on the who and the why… she wants answers."

Mr Middleton said that if damages were awarded, it was important they reflected only in relation to her son’s death and not other matters, including the death of her father and nephew before Mr Shaw’s death, and the passing of her mother in 2006.

Mr Casey said his client, however, still carried the guilt that she did not protect her son and her chance of recovery was "poor". He said Mrs Shaw’s psychiatric injury was "likely to persist in the foreseeable future".

The counsel said Mrs Shaw was now functioning well below the energetic, well-balanced woman who had gained an enormous amount of pleasure from looking after her family before her son’s death. "The prognosis is not very good at all," Mr Casey said.

Justice Philip Cummins yesterday told the jury following closing addresses that it must put aside sympathy and prejudice when considering a verdict.

He said the jury must not act on the basis of "speculation", "guesswork" or "wild possibilities" but on the evidence along.

Justice Cummins said the trial was a "falling off something case" and the real dispute was what took place with the vehicle on the roadway.
He urged the jury to apply common sense during deliberations, which are expected to begin today.