Ahmadi-Digehsara v NRMA Insurance Ltd

[2007] NSWLC 18

Local Court of New South Wales

CITATION:	Ahmadi-Digehsara v NRMA Insurance Ltd [2007] NSWLC 18
JURISDICTION:	Civil
PARTIES:	Sohaila Ahmadi-Digehsara NRMA Insurance Ltd
FILE NUMBER:	8782/05
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	01/30/2007
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Contract - Insurance - Whether plaintiff proved theft of vehicle - Whether plaintiff breached obligation to be frank and truthful in statements made in respect of claim - Whether plaintiff breached obligation of utmost good faith
LEGISLATION CITED:	Insurance Contracts Act 1984 (Cth) s.13.
CASES CITED:	Hammoud Brothers Pty Ltd v NRMA Insurance Ltd [2004] NSWCA 366
REPRESENTATION:	Mr K.W. Andrews (counsel) instructed by Rishworth Dodd Solicitors Mr M.B.J. Lee (counsel) instructed by William Roberts Solicitors
ORDERS:	Verdict for the defendant. Judgment accordingly. Costs reserved.

REASONS for DECISION

1. The plaintiff, Ms Sohaila Ahmadi-Dighesara, was the owner of a Nissan Pathfinder four-wheel drive motor vehicle that she claims was stolen on 10 August 2004 from outside a building in Ross St, Parramatta where she and her children were staying for the evening with a friend. The car was found burning in Shane Park Rd, Shane Park at about 9pm that night.

2. The vehicle had been comprehensively insured with the defendant company, NRMA Insurance Ltd on 1 March 2004. The insurer agreed, if the car was stolen or damaged, to pay either the market or agreed value or to bear the cost of repairs. Following the alleged theft, the insurer refused to pay her the sum she claimed pursuant to her insurance contract. She now claims a sum of $40,076.08.

3. NRMA maintains its defence to the claim on three bases: first, it does not admit that the vehicle was stolen and asserts that the plaintiff has not proven that it was. (NRMA did not, however, plead fraud on the part of the plaintiff.) Second, it asserts that, in breach of her obligations under her contract with NRMA, Ms Ahmadi-Dighesara was not frank and truthful in making her claim. Last, it asserts that she breached her contractual obligation of utmost good faith to NRMA, a condition of the contract implied by operation of s.13 of the Insurance Contracts Act 1984 (Cth) in all insurance contracts covered by the legislation.

4. The issues therefore are relatively simple. First, was the car stolen? Second, was Ms Ahmadi-Dighesara frank and truthful in making her claim upon NRMA? Third, did Ms Ahmadi-Dighesara breach her obligation of utmost good faith? The converse to these matters is the question whether NRMA breached the terms of its contract with the plaintiff. Quantum is not, I understand, in issue.

Was the car stolen?

5. The plaintiff bears the onus, on the balance of probabilities, of proving that the car was taken and destroyed without her consent. I have taken into account all the evidence given or tendered but, in the interests of economy, will refer only to those parts of it which are of prime significance.

6. As well as her oral evidence in court, Ms Ahmadi-Dighesara gave two earlier recorded versions of events. She spoke first to an NRMA officer called Ms Katherine Salazar on 13 August 2004 about the disappearance of the car. She was also interviewed by an NRMA investigator on 3 September 2004.

7. The kernel of her story remained the same in each of the three versions she gave but there were inconsistencies, which were fully explored in cross-examination, between the versions in relation to peripheral issues. Allowance must be made for both the passage of time and the fact that English was not the plaintiff’s first language. She gave evidence through an interpreter in court and in her interview with the investigator. To what degree precisely there were difficulties in translation I cannot say but it was clear that she was confused at times during her oral testimony by the complexity of some of the questions she was asked. Even so, there were striking inconsistencies between the versions given in 2004 and 2006. They emerged mainly in cross-examination. Although in most cases in themselves relatively minor, because of the number of them the inconsistencies became significant in an assessment of Ms Ahmadi-Digehsara’s evidence.

8. The core of Ms Ahmadi-Digehsara’s accounts is that her husband had bought the vehicle in November 2003 for about $39,700. The vehicle was later transferred to her. On the evening of 10 August 2004, she said, she had stayed the night at her friend’s place in Ross St, Parramatta. She said that she had arrived at her friend’s place at about 7.30-8.00 pm and had slept there overnight with her baby daughter. She stated that she had parked the car on the street and had discovered it gone when she went outside at about 6.00 or 6.30am the following day. She said that she had searched for the car but been unable to find it. She saw no broken glass on the ground where she had parked the car.

9. In all three versions she stated that she had notified the police of the theft on the morning in question and had been in contact with her husband who had collected her from Ross St and taken her home.

10. She also stated in all three versions that there were only two keys for the car and that both had been sent to NRMA after the destruction of the car, that she had had no intention of selling the car and that the family had no significant debts or financial difficulties. She also said that she had had no desire to sell the vehicle which she “loved”.

11. Concerning her reasons for visiting her friend at Ross St, she gave differing accounts. According to the NRMA record tendered Exhibit 7., in her conversation with Ms Salazar on 13 August 2004 Ms Ahmadi-Digehsara stated that she had slept at her friend’s place in Ross St as “it was her birthday”. She told the NRMA investigator that the reason for her visit was that her friend’s son was friendly with her daughter. Exhibit 2 Q30. She also told the investigator that she and her friend were very close friends and that they saw one another often. Exhibit 2 Q82. She said, “…usually she is coming here two, three times every day and then I am going there and normally to go there we are very close together.” In her oral evidence in court, however, she stated that she had gone to her friend’s house to take a birthday present. It emerged in cross-examination that her friend’s birthday was in March. This was curious but, of itself, not very important.

12. Of greater moment, however, were the discrepancies between her various accounts of how she had sought to get in touch with police and her husband on 11 August 2004.

13. In the version given to Ms Salazar in August 2004, NRMA recorded that Ms Ahmadi-Digehsara said that after she had discovered the disappearance of the car she had called her husband to come and had rung the police on his mobile telephone.

14. She gave a rather more expanded version to the investigator in September 2004. She said that she had initially tried to call the police but was not able to do so and had then called her husband and, after her husband had arrived at about 7.30am, called the police. She elaborated upon her attempts to call the police. It was somewhat unclear as to what times she was referring to but she stated at first that the police line had been engaged. She corrected this by saying that she had been kept on hold for some time “so I went away”. Exhibit 2 Qs33. She said that she had then rung 000 but had been advised to call the number she had originally been using. She said that she had then called that number again and this time was successful in making contact. She said that the police had then advised her that the car had been discovered destroyed.

15. Later in the interview she was asked whether she had a mobile telephone and agreed that she had. She stated that the calls she had made had been made on her telephone. Exhibit 2 Q89-95. This was somewhat inconsistent with her earlier statement that she had called the police with her husband’s telephone but there may have been a misunderstanding on her part as to what had been asked at that point in the interview. I would not draw an adverse conclusion from this.

16. More noteworthy, however, were the inconsistencies between what was presumably a reasonably fresh memory of the sequence of events in 2004 and the complicated and highly wrought version that emerged in her cross-examination in 2006 at the trial concerning the telephone calls.

17. In chief, Ms Ahmadi-Digehsara said that she had emerged from her friend’s house at about 6am to find the car gone. She said that she had looked at her mobile phone to tell the time. She said that when she saw the car missing she was scared and had panicked, so she had called her husband, leaving a message for him that the car was missing. She said that she had then told her friend and then called the police.

18. She also said in evidence-in-chief that she was sure she had called the police at 6.25am and that the Parramatta police had called her back between 6.25 and 6.40am and told her that the car had been found.

19. In cross-examination, however, her story changed a number of times. The first account she gave in cross-examination was that she had called her husband on her mobile telephone but could not call the police on it because she had had low batteries. Transcript of 29 March 2006 p.10. She said that she had used her husband’s telephone to call the police after his arrival. She then altered or corrected that statement by saying that she had called the police first on her mobile telephone but been placed in a queue and had hung up when she spoke to the operator telling him or her that she had a low battery. She said that she had called the police again when her husband arrived at about 6.30am.

20. She then gave evidence that she had in fact not been able to make contact with her husband directly but had left a number of “missed calls” on his mobile telephone. During the course of the cross-examination she elaborated on this practice which, she suggested, was a coded form of communication between herself and her husband that she had used previously and used on this occasion because she had had low battery power. She said that if she called her husband leaving “missed calls” (ie, calls terminated before the receiver can answer the telephone) he would call her back and come to her aid if she did not answer his call. She agreed, however, that there had never been a previous occasion when her husband had not been able to call her back after she had left him “missed calls”.

21. She also gave evidence that her friend had had a landline in the home unit at Ross St, that she had spoken to her friend via the intercom system at the building entrance but that she had not thought of using her friend’s telephone to call her husband or the police because of her state of shock.

22. She agreed in cross-examination that it would not have been truthful to assert that she first telephoned the police when her husband arrived at Ross St at 7.30am. She also agreed that it was not the truth that she had made telephoned the police but found the line engaged. She conceded that it was not true that the first police telephone number she had called was not the 000 emergency number. Finally, she also admitted that a statement that she had telephoned her friend after discovering the car missing would not be the truth.

23. Ms Ahmadi-Dighesara’s account was corroborated in certain respects by her friend Ms Hanideh Ghaffari. On 23 September 2004 in an interview, Ms Ghaffari confirmed to an NRMA investigator that Ms Ahmadi-Dighesara had stayed the night at her place but said that a couple of minutes after Ms Ahmadi-Dighesara had left at about 6.30am she had rung up and said that her car was stolen.

24. Ms Ghaffari told the NRMA investigator what had happened next: “… I told her to come home and like take a few minutes to calm down and then we called the police, I called her husband. And she say, no that’s all right. She will call her husband to come and pick her up, so that was all.” Exhibit 3A Q16-17. Ms Ghaffari said that Ms Ahmadi-Dighesara had not come back to her flat.

25. That evidence, on its face, somewhat contradicted the account given by Ms Ahmadi-Dighesara. Nevertheless, it is possible that Ms Ghaffari confused being called over the telephone with being called on the intercom system. In her oral evidence, Ms Ghaffari stated that Ms Ahmadi-Dighesara had buzzed her door saying that the car had been stolen and that she wanted to call her husband. Second, reading that evidence in context, it seems that Ms Ghaffari, whose native language was not English, was not asserting that she had in fact rung Ms Ahmadi-Dighesara’s husband or the police but had made the suggestion that she do so to Ms Ahmadi-Dighesara.

26. Ms Ghaffari denied to the investigator that that there had been any special occasion being celebrated by her and Ms Ahmadi-Dighesara. Exhibit 3A Q22. In her oral evidence, however, she said that Ms Ahmadi-Dighesara had brought a small gift for her, a bottle of perfume, for her past birthday. She also stated that Ms Ahmadi-Dighesara and her daughter had arrived at about 6-7pm but was somewhat vague about the time.

27. One worrying feature of Ms Ghaffari’s evidence was that it emerged during her cross-examination that she had discussed the question of the birthday gift with the plaintiff before giving her evidence in court. She said that she had reminded Ms Ahmadi-Dighesara of the nature of the gift because Ms Ahmadi-Dighesara could not remember it. Why she felt it necessary to do so was unclear. She denied anything untoward but it cast something of a shadow across her account.

28. The plaintiff’s husband Mr Shwan Nakshbandi also gave evidence for the plaintiff. Mr Nakshbandi is a taxi-driver. On the evening in question he said that he had been on a night shift, concluding at 3am. He said that he had known where his wife was that evening. He said that he had been woken by a number of “missed calls” from his wife arriving on his mobile telephone, had been unable to reach her on her telephone and had decided to go to investigate. He said that he had found his wife wandering around outside her friend’s place looking shocked and confused. He said that when he arrived she was trying to call the police. He said that while he was there she had used his mobile telephone to attempt to call the police but had been unsuccessful. He said that he drove her home and on the way she had managed to get through to the police.

29. Mr Nakshbandi also gave evidence that, having sold their house and having accrued about $100,000 in savings as a result, the family was in a healthy financial situation.

30. In cross-examination, he conceded that the police had not telephoned him on his mobile telephone on the morning of 11 August 2004. This contradicted some evidence given by Ms Ahmadi-Dighesara that she had given the police her husband’s number and that the police had called back on that telephone.

31. The defendant’s primary evidence in answer to the plaintiff’s allegations was a report by an expert locksmith, Mr Ross Squire. Mr Squire was unable to examine the destroyed vehicle but based his report on digital images of the vehicle and his examination of the keys of the vehicle produced to NRMA by the plaintiff during its investigation of her claim.

32. In summary, Mr Squire found that the door cylinders of the car showed no signs of having been forced using common methods. He also concluded that the ignition/steering lock assembly had been in its correct position and was intact at the time the fire destroyed the car.

33. The photographs Mr Squire had relied upon were taken by a motor vehicle loss assessor, Mr Paul Wetson who examined the car on 19 August 2004. During his examination of the car Mr Wetson also found that there was no evidence of manipulation of the door cylinders. He also concluded that the windows had melted and had not been smashed. This latter opinion was corroborated to some degree by Ms Ahmadi-Dighesara’s own evidence of lack of broken glass at the scene in Ross St. Mr Wetson found that no components, such as radio, alloy wheels or bull bar had been stripped from the vehicle.

34. Mr Squire also gave evidence of his examination of the keys. Both the plaintiff and her husband gave evidence that the keys had not been duplicated. Mr Squire, corroborated by the plaintiff’s own expert locksmith, Mr Les Fuller, found that one of the keys showed signs of duplication. Mr Squire stated, “This process had taken place very recently in terms of the key’s service life and there was no visible effacement of the tracer contact and/or clamp marks from subsequent use of the key.” Exhibit 9 p.6 [4.3].

35. Mr Fuller’s view was that it would be very difficult to determine when the key had been duplicated because of two unknown variables: the degree to which (if any) the key had been used and the nature of the environment in which it had been stored since the duplication of the key.

Findings and conclusions on theft of the vehicle

36. Some matters are not contentious. The motor vehicle owned by the plaintiff was found burning on the morning of 11 August 2004. The plaintiff had owned the vehicle for some time and was not, as is sometimes the situation in cases of this kind, an unsuccessful would-be vendor of the vehicle or otherwise in financial difficulties at the time the vehicle was burned.

37. The plaintiff bears the onus of proving that the car was stolen: the defendant has not pleaded fraud on the part of the plaintiff and does not have the burden of proving such an allegation.

38. The defendant contends that the plaintiff has not discharged her burden of proving that the car was removed from her possession and control without her consent. In Hammoud Brothers Pty Ltd v NRMA Insurance Ltd [2004] NSWCA 366 and other cases, the Court of Appeal has made clear that, in a case such as this, the plaintiff bears the onus of establishing that his or her vehicle was stolen. The defendant may seek to prove as a positive proposition that the plaintiff’s car was not stolen but it does not bear the primary onus of proof. A court may not be satisfied that a plaintiff has established on the balance of probabilities that his or her car was stolen without going the extra distance to a positive finding that the plaintiff has acted fraudulently.

39. The evidence of the plaintiff was subjected to a robust examination by counsel for the defendant. Ms Ahmadi-Dighesara’s credit and credibility, in particular, were placed under searching scrutiny. Her evidence on some matters was inconsistent. Demeanour is a particular difficult form of evidence to assess and the degree of difficulty is markedly increased when a witness’s evidence is given in a foreign language by a person from unfamiliar or different culture through an interpreter. I found Ms Ahmadi-Dighesara, Ms Ghaffari and Mr Nakshbandi hard witnesses to assay for that reason.

40. I also take into account the facts that some of the ambiguities in Ms Ahmadi-Dighesara’s answers may have been brought about by the passage of time eroding the freshness of her memories of 11 August 2004 and the difficulty of translating sometimes complex questions with absolute precision.

41. Even making such allowances, however, there are a number of matters which tended to weaken rather than strengthen Ms Ahmadi-Dighesara’s credit and therefore the credibility of her claims about the events of 11 August 2004.

42. First, there was considerable confusion on her part in relating her reaction to finding her car gone, especially the chronology of the telephone calls. That, in itself, would not necessarily undermine her credit in a serious way because the shock of finding her car gone might well have led to confusion on her part and difficulties getting the chronology in the correct order. One might, however, reasonably have expected that she would remember calling either the police or her husband first.

43. Second, even making allowance for a level of shock and confusion that may have disrupted her ability to remember the sequence of events accurately, it was very striking, on her account, that despite having returned to speak to her friend Ms Ghaffari via the intercom, she did not avail herself of the offer Ms Ghaffari says she made to Ms Ahmadi-Dighesara to call her husband and the police. Ms Ahmadi-Dighesara said she did not think of doing so but Ms Ghaffari said that her specific offer was rejected. If that is so, Ms Ahmadi-Dighesara made the strange but conscious decision not to use her friend’s telephone. This was all the more curious given that, on her own account, Ms Ahmadi-Dighesara’s telephone battery was low in power – not so low, however, or so it seems, that the telephone turned itself off .

44. Third, both Ms Ahmadi-Dighesara and Ms Ghaffari emphasised the closeness of their friendship and the frequency with which they saw one another in 2004. Yet both gave evidence that Ms Ahmadi-Dighesara had provided a birthday present to Ms Ghaffari five months after the due date. This was not implausible but was odd. Of greater concern, perhaps, in relation to credit was the fact that, on Ms Ghaffari’s admission, they had discussed their evidence concerning the nature of the birthday gift. That gave rise to the suspicion expressed in cross-examination by counsel for the defendant that they had sought to tailor their evidence on this point to match one another’s. If so, why?

45. Fourth, the evidence given by Ms Ahmadi-Dighesara and her husband concerning a “missed call” emergency code or technique of communicating with one another appears to be at odds with what Ms Ahmadi-Dighesara had first told NRMA in August 2004. According to NRMA’s records she told Ms Salazar that she had “called her husband” then the police. In September 2004, she also told the investigator that she had called her husband. In plain language those statements connoted a conversation between them not some sort of electronic semaphore. They are not necessarily inconsistent with her account of using “missed calls” but the lack of clarification at the time of the investigation gives rise to an unfortunate odour of recent invention.

46. More significantly, it is common sense that a short call on a telephone with a low battery to her husband would have taken very little time and reduced the longevity of the battery very little. That was an option available to Ms Ahmadi-Dighesara. At one point in her evidence she indicated that she is characteristically careful with the usage of her telephone because it is a pre-paid account: that is, she had limited credit to use. Nevertheless, this was not the time to be worrying about saving a few cents. She did not suggest at any time that her credit was about to reach its limit. Given the gravity of the misfortune that had just befallen her, it seems strange, if not bizarre, that she would not use her telephone and speak to Mr Nakshbandi directly rather than leaving him in suspense in his exhausted state worrying about her. The strangeness of this behaviour emphasises all the more the oddity of her refusal of her friend’s offer to call her husband and the police, (if that evidence is in fact true).

47. Finally, even if allowance is made for all these factors, there remains for the plaintiff the problem of the forensic evidence concerning the lack of damage to the car door lock cylinders and ignition assembly and the positive evidence that one of the keys had been duplicated.

48. The plaintiff and her husband denied having duplicated the keys they had handed over to NRMA during the investigation. Evidence was given by Ms Ahmadi-Dighesara when interviewed that both she and her husband had a set of keys and that she usually hung her keys on a hook by the front door. She said that her husband and she used the car. Mr Squire’s report suggests that one of the keys had been duplicated and had had very little usage since the time of the duplication. That combination of facts inevitably gives rise to a suspicion that the plaintiff or her husband had duplicated, or arranged the duplication, or consented to the duplication, of a third key.

49. That was critical evidence because of the conclusions arrived at by Mr Squire that the door and ignition cylinders showed no sign of manipulation consistent with methods commonly used by thieves to break into and start vehicle for the purpose of stealing them. The lack of glass at the site of the alleged theft, and Mr Wetson’s uncontradicted opinion that the glass in the burnt vehicle had melted rather than being smashed, further suggested that the vehicle had been removed by a person using a duplicate key (which was not found in the ignition cylinder after the fire).

50. In my view, it is more likely than not that a person using a duplicate key removed the car from wherever it was located on 10 August 2004, took it to the site at which it was burned and set fire to it. It is impossible on the evidence to identify that person.

51. It does not necessarily follow that this proves that the plaintiff knew of and consented to the duplication of the key and the destruction of the car but her difficulty in discharging her onus of proof is self-evident. On the evidence I cannot be satisfied that she has done so.

Conclusion

52. Having reached that conclusion, it appears to me to be unnecessary to dispose of the second and third defences relied upon by NRMA.

53. There will be a verdict for the defendant and judgment accordingly.

54. I reserve the question of costs.

Hugh Dillon

Magistrate