Alexander v Ghaddar; Adhami v Vrkic
[2019] ACAT 22
•11 February 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ALEXANDER v GHADDAR; ADHAMI V VRKIC & ANOR (Civil Dispute) [2019] ACAT 22
XD 1361/2017
XD 1635/2017
Catchwords: CIVIL DISPUTE – motor vehicle accident property damage – no issues of law – question of fact only – credibility of witnesses
Tribunal:Senior Member A Anforth
Date of Orders: 11 February 2019
Date of Reasons for Decision: 11 February 2019
AUSTRALIAN CAPITAL TERRITORY ) XD 1361/2017
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1635/2017
BETWEEN:
LEESA ALEXANDER
Applicant - XD 1361/2017
HASSAN ADHAMI
Applicant - XD 1635/2017
AND:
RANDA GHADDAR
Respondent - XD 1361/2017
Third Party - XD 1635/2017
DANIEL GORAN VRKIC
Respondent – XD 1635/2017
TRIBUNAL:Senior Member A Anforth
DATE:11 February 2019
ORDER
The Tribunal orders that:
1.The respondent to XD 1361/2017, Randa Ghaddar, pay the applicant in that matter, Leesa Alexander, the sum of $4,927 on or before 30 March 2019.
2.The Registrar is directed to relist the matter for submissions on costs.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Summary
1.Ms Alexander (the applicant) was the owner of a silver 2002 model Holden Berlina registration YHL 62C that was being driven by her son Daniel Vrkic when it was involved in an accident with a grey Toyota Rav4 registration YHH 78E being driven by Ms Ghaddar (the respondent).
2.The accident occurred on 13 October 2016 at the intersection of Castleton Crescent and Sternberg Street, Fadden.
3.The intersection had the following layout (Figure 1). The two vehicles involved in the accident were cars A and B. There is no dispute that Car B failed to give way and drove across the intersection. Car A was proceeding straight through the intersection and had the right of way.
Figure 1 Layout of intersection (image not to scale)
4.Car A impacted Car B on its non-drivers side. Both cars spun and Car A finished on the cement median strip after impacting with Car 2.
5.There were three other vehicles at the intersection at the time of the accident, Cars 1, 2 and 3, none of whose drivers had any relationship to any of the parties to these proceedings. There was only one occupant in each of these three vehicles and they each gave evidence about the accident. The driver of Car 1 was Ms Dunne; the driver of Car 2 was Mr Grady; and the driver of Car 3 was Ms Armour.
6.There is no dispute concerning how the accident happened and that Car B was in the wrong. The issue in this case is whether Car B was being driven by the respondent or by Daniel Vrkic. Both these parties assert that they were driving Car A and the other party was driving Car B.
7.Plainly both assertions cannot be true. The Tribunal informed the parties that it did not accept that it was possible for one of the parties to have simply forgotten that it was their vehicle travelling south that pulled across in front of Car A. The collision was a major one causing both vehicles to be written off. The police, ambulance and fire brigade attended.
8.The applicant’s vehicle was insured by the NRMA and the respondent’s car was uninsured for the property damage. The NRMA was exercising its subrogation rights in bringing the claim in the applicant’s name.
9.The case may have been quickly resolved by recourse to the observations of the three independent witnesses of cars 1, 2 and 3. However the drivers of Cars 1 and 2 testified that Car A was the Holden but the driver of Car 3 testified that Car A was the Rav4.
10.A silver Holden Berlina and a grey Rav4 are very different looking vehicles and not likely to have been mistaken. The driver of Car 3, Ms Armour, testified that she was in fact following the south bound Holden when it pulled across in front of the Rav4.
11.The drivers of Cars 1 and 2 were stationary at the intersection and witnessed the whole event. They both testified that the Rav4 was travelling south bound and pulled across in front of the Holden. On impact the Holden went into a spin and came to rest after impacting Car 2.
12.The police, fire brigade and ambulance each attended and their reports were obtained.
13.Each party gave evidence for the reason that they said they were travelling north bound at the time of collision. Both accounts were plausible.
14.There was no expert evidence attempting to reconstruct the accident from the kind of panel damage to the cars. In any event, this task would have been made more difficult by the fact that the vehicles spun and the Holden suffered further impacts. The respondent did attempt to lead evidence from a loss assessor concerning the likely sequence of the accident. The Tribunal accepted the evidence concerning the location of damage on panels and the valuation, but declined to accept their evidence on the reconstruction of the accident. Accident reconstruction is not a trivial exercise and is a matter for experts properly qualified and experienced. Loss assessors do not qualify as experts on this matter. In any event, the evidence was speculative and inconsistent. It would not have assisted.
15.The Tribunal took into evidence the points of impact damage on both cars. A scale road and cars were set up and a demonstration conducted by the respondent in an endeavour to demonstrate that the respondent must have been Car A. The applicant conducted its own demonstration. Neither demonstration was convincing.
16.In the end, the question to be determined was a simple factual one: that is, who was driving Car B? There were three independent witness whose eyewitness accounts were of greater value than any speculation arising from model reconstructions of the accident. The problem is that the three independent witnesses differ in their recollections. It therefore becomes a matter of deciding which of the two competing sets of evidence is more convincing.
17.In the end, the Tribunal was more convinced by the evidence of the driver of Car 2, Mr Grady, who presented a clear and consistent account (corroborated by the driver of Car 1, Ms Dunne). He first provided his account on 21 November 2016 to the NRMA when the events were more recent in his memory.
18.On balance, the Tribunal has come to the view that Mr Vrkic was the driver of Car A, the Holden which belonged to his mother, the applicant.
19.On this finding it follows that the respondent was the driver of Car B, the Rav4, which was responsible for the accident.
20.There was no serious dispute on the quantum issues. The applicant’s vehicle was valued at $4,500 and was a write off, there was towing charge, and the Tribunal filing fee, minus a small salvage amount, giving a total of $4,927.
21.The starkness of the irreconcilability of the competing assertions was addressed at the beginning of the hearing. It was put by the Tribunal that it is not possible for either party to have simply forgotten which direction they were travelling in and that it was they who pulled across the intersection. It follows that one of the parties is telling an audacious lie. Parties were informed at the beginning of the matter that bringing or defending a case on the basis of an audacious lie would likely attract an adverse costs order.
22.The parties will be heard on that matter.
The history of the proceedings in the Tribunal
23.On 31 October 2018 the applicant commenced proceedings XD 1361/2017 in the Tribunal in the sum of $4,751.82 (excluding GST) plus the Tribunal fee of $150 and interest of $269.69. The applicant is the mother of Daniel Vrkic and the owner of the Holden vehicle driven by Mr Vrkic.
24.The application annexed:
(a)a motor vehicle repairs report that the Holden was valued at $5,000 (later revised to $4,500) and was a write off;[1]
(b)an invoice for towing in the sum of $324.00;[2] and
(c)an invoice from Pickles Auctions to the effect that the applicant was paid $47 for the salvage value of the Holden.[3]
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 3
25.On 30 November 2018 the respondent filed its response and counter claim consistent with its assertions in the above summary that the respondent was in fact driving Car A.
26.On 18 December 2017, the respondent’s husband, Mr Adhami, issued his own new claim against Daniel Vrkic, being matter XD 1635/2017. The rationale was simply that it is the driver and not the owner of a vehicle that is the tortfeasor in an accident caused by their negligence. Annexed was a repairer report from Marko Body Repairs dated 27 April 2017 in the sum of $17,035.67 for repairs, and an invoice for $4,343.61 for towing and storage.[4]
[4] Exhibit 22
27.On 5 February 2018 Daniel Vrkic, as the respondent in XD 1635/2017, filed his response, which was consistent with the above summary that he was driving Car A.
28.On 5 February 2018 Mr Vrkic also issued a third party notice joining Randa Ghaddar as a third party to XD 1635/2017.
29.On 19 March 2018 Ms Ghaddar filed her response to the third party notice, again asserting that she was driving Car A.
30.Both matters were referred to conciliation together. The matters did not settle at a conference on 24 April 2018. Timetabling orders were made on that day for the parties to file and serve their evidence including expert evidence. Issues with compliance arose and there were a number of extensions of the timetable. On 2 July 2018 orders were made for the issue of any subpoenas required by the parties.
31.Neither party filed any expert report relating to the reconstruction of the accident.
32.On 4 July 2018 the applicant filed and served the following documents:
(a)a time line of events;[5]
(b)a witness statement by Daniel Vrkic dated 2 July 2018[6] with attachments of photographs of the intersection and damage to the Holden;
(c)a witness statement by Mario Tanti, motor vehicle assessor, dated 29 June 2018 with attachments;[7]
(d)a witness statement from the applicant dated 2 July 2018, with attachments;[8]
(e)a statement from Matthew Grady, the driver of Car 3, dated 6 June 2018.[9] Mr Grady had previously made statements to the police and the NRMA on 21 November and 14 December 2016 to the effect that Car A was the Holden and Car B the Rav4; and
(f)a statement from Patricia Dunne, the driver of Car 2, dated 6 June 2018, with attachments.[10] Ms Dunne had previously made a statement to the NRMA on 21 July 2017 to the effect that Car A was the Holden and Car B the Rav4.
[5] Exhibit 4
[6] Exhibit 5
[7] Exhibit 6
[8] Exhibit 7
[9] Exhibit 8
[10] Exhibit 9
33.On 12 July 2018 the respondent filed a statement from Fadden Out of School Hours Care relating to the hours of her child on the date of the accident.[11]
[11] Exhibit 10
34.On 19 July 2018 the respondent’s husband filed his amended claim against Daniel Vrkic in matter XD 1635/2017. The claim was in the sum of $23,232.71, plus the Tribunal filing fee of $150, plus interest. The pleadings were consistent with the respondent’s position in the above summary.
35.The amended claim annexed the following documents:
(a)a witness statement from Randa Ghaddar dated 12 June 2018 with attachments;[12]
(b)a witness statement from Layal Aoun dated 12 June 2018;[13]
(c)an undated report from Michael Harvey, loss assessor, with attachments;[14]
(d)a witness statement from Hassan Adhami dated 12 June 2018 with attachments;[15]
(e)a witness statement from Tori Armour, the driver of Car 3, dated 20 February 2017 with attachments;[16]
(f)a Google map of the intersection;[17]
(g)a statement from the respondent to the NRMA dated 24 October 2016 with attachments;[18]
(h)photographs of the Holden;[19] and
(i)invoices for the repair of the respondent’s vehicle.[20]
[12] Exhibit 11
[13] Exhibit 12
[14] Exhibit 15
[15] Exhibit 14
[16] Exhibit 16
[17] Exhibit 17
[18] Exhibit 18
[19] Exhibit 19
[20] Exhibit 20
36.The matters were listed for hearing on 23 July 2018. Mr Opas of counsel instructed by Mason Black solicitors appeared for the applicant and Mr Vrkic. Ms Newall, solicitor of Mills Oakley appeared for the respondent and for Mr Adhami.
37.The applicant, the respondent, Ms Aoun, Ms Armour (by telephone), Mr Grady, Ms Dunne, Mr Vrkic and Mr Tanti all gave evidence in which they adopted their statements and were cross-examined. They each adhered to the content of their statements and were not shaken in cross-examination.
38.The respondent provided model cars and a map of the streets and carried out a demonstration of the accident said to show that the damage to the cars was more consistent with the respondent’s version of events. The applicant provided a contrary demonstration. There was general discussion.
39.At the hearing there had been no return of documents subpoenaed from the Australian Federal Police (AFP) concerning the accident. The Tribunal was informed that there was an off-duty fireman present at the intersection at the time of the accident to whom the police in attendance spoke. The matter was adjourned for the parties to pursue the police records and the identity of the off-duty fireman.
40.The documents from the AFP were returned and access was given to the parties on 28 August 2018. The fireman was not identified. Neither party had identified the fireman from other sources or processes.
41.On 26 September 2018 the respondent filed:
(a)the response from the AFP;[21]
(b)information about Fadden after school care;[22]
(c)the mobile phone record for the mobile of Hassan Adhami for the day of the accident;[23]
(d)a street map of the scene of the accident marked by Mr Adhami;[24] and
(e)photographs of the damage to the Rav4.[25]
[21] Exhibit 26
[22] Exhibit 27
[23] Exhibit 28
[24] Exhibit 29
[25] Exhibit 30
42.On 9 October 2018 the applicant filed:
(a)correspondence from the applicant’s solicitors to the AFP regarding their records; and
(b)an email from First Constable Jenkins saying that the police took no action and have no further records.
43.Both matters were listed for final hearing on 10 October 2018. Mr Opas of counsel instructed by Mason Black solicitors appeared for the applicant and Mr Vrkic. Ms Newall, solicitor of Mills Oakley appeared for the respondent and Mr Adhami. The parties acknowledge that the evidence in one matter was evidence in the other matter.
44.Mr Hassan Adhami gave evidence. He adopted his statement. In cross‑examination he conceded that his vehicle was uninsured and that he did not have the funds to repair it himself. In the period following the accident, the car was stored at Marco Body repairs and he hired another cheap vehicle.
45.Michael Harvey gave evidence and adopted his statement. Ms Newell sought to have Mr Harvey speculate on the reconstruction of the accident based on his experience as a loss assessor. The question was disallowed. In cross-examination Mr Opas took issue with some of the items allowed in Mr Harvey’s report. In view of the finding on liability summarised above the details of this cross‑examination are no longer relevant.
46.No further witnesses were called by either party and the matter proceeded to oral submissions.
Consideration of the issues
47.Obviously the version of both parties cannot be true and one of them is lying.
48.The respondent has the greater motivation for lying because she (and her husband, as the applicant in matter XD 1635/2017) was uninsured and lacked the financial capacity to repair or replace their vehicle. The applicant was insured and the NRMA had paid out on a write off basis. The amount in question is small for the NRMA and not such as to provide a motivation for a large insurer to engage in a deception.
49.The evidence of Mr Grady was clear and the most convincing. He first committed his observations to writing shortly after the accident on 21 November 2016. Ms Dunne was the closest of the witnesses to the spot of the impact and she corroborated Mr Grady’s observations.
50.The above may seem a slender basis for choosing between the two versions but it is the Tribunal’s task to decide the issue and this task cannot be avoided.
51.The respondent is to pay the applicant the sum of $4,927.
52.The respondent’s claim and counterclaim are dismissed.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER XD 1361/2017 PARTIES, APPLICANT Leesa Alexander PARTIES, RESPONDENT Randa Ghaddar PARTIES, THIRD PARTY N/A COUNSEL APPEARING, APPLICANT Mr Opas COUNSEL APPEARING, RESPONDENT N/A COUNSEL APPEARING, THIRD PARTY Mr Opas SOLICITORS FOR APPLICANT Mason Black SOLICITORS FOR RESPONDENT Mills Oakley TRIBUNAL MEMBERS: Senior Member A Anforth DATES OF HEARING: 23 July 2018
10 October 2018
FILE NUMBER XD 1635/2017 PARTIES, APPLICANT Hassan Adhami PARTIES, RESPONDENT Daniel Goran Vrkic PARTIES, THIRD PARTY Randa Ghaddar COUNSEL APPEARING, APPLICANT N/A COUNSEL APPEARING, RESPONDENT Mr Opas COUNSEL APPEARING, THIRD PARTY N/A SOLICITORS FOR APPLICANT Mills Oakley SOLICITORS FOR RESPONDENT Mason Black SOLICITORS FOR THIRD PARTY Mills Oakley TRIBUNAL MEMBERS: Senior Member A Anforth DATES OF HEARING: 23 July 2018
10 October 2018
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