Phyllis Jeffries was killed instantly when a CountryLink Xplorer
train collided with her motor vehicle at a level crossing. As a
result of the collision, both carriages of the train were derailed
and rail infrastructure was damaged. The owners of the train and
rail infrastructure sought to recover repair costs from
Jeffries' third party property insurer, Vero Insurance. Section
51 of the Insurance Contracts Act provides a third party
the right to recover against an insurer where its insured has
The policy of insurance provided that Vero would indemnify its
insured against liability for loss or damage to property 'as
the result of an accident'. Cover for damage which was
'intentionally caused' was excluded from the policy. Vero
argued that its insured driver had committed suicide and therefore
the damage was not the result of an accident as required by the
Witnesses gave evidence that the car had initially stopped at
the railway crossing for a short period and then slowly moved onto
the railway line. Vero submitted that Jeffries intentionally
positioned her vehicle in the path of the train. However, the Court
accepted that as the vehicle would creep forward when in gear and
idling, and as the accelerator was not activated at the time of the
collision, it had not been purposely driven onto the tracks.
The train driver gave evidence that he had sounded his whistle
twice before the impact, however the Court considered it unlikely
that Jeffries heard the whistles as she often played her music
loudly and had the windows closed at the time of the collision.
The medical records of Dr Moroney, Jeffries' general
practitioner for more than 30 years, repeatedly referred to
'stress' and 'depression'. In addition, Jeffries
had ceased taking prescription medication for her depressive state
before the collision. Dr Moroney expressed the view that that
Jeffries had committed suicide. Two of three expert psychiatrists
also concluded that it was highly probable that Jeffries' death
was the result of an intentional act. The Court, however, preferred
the evidence of Jeffries' son that she would not have taken her
own life even though she suffered from depression or had any mental
The Court held that Jeffries did not intentionally cause the
collision. Vero Insurance was ordered to pay damages in excess of
Rail Corporation NSW v Vero Insurance Ltd
 NSWSC 631
On the face of it, this decision appears to be against the
weight of evidence. Query whether the Court's decision might
have been different, had the intentional act been of a less
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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