Alizad v Transport Accident Commission
[2020] VCC 1808
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-17-03419
| HAMIDULLAH ALIZAD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2020 | |
DATE OF JUDGMENT: | 20 November 2020 | |
CASE MAY BE CITED AS: | Alizad v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1808 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT – COMMON LAW
Catchwords: Where the case depends on an unreliable and uncorroborated witness
– Where Plaintiff’s evidence unreliable – Inconsistent evidence
Cases Cited:Nominal Defendant v Smith (2015) 73 MVR 257; Fox v Percy (2003) 214 CLR 118
Judgment: Claim dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Richards QC with L Howe | Zaparas Lawyers |
| For the Defendant | J Gorton QC with | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff in this case does not succeed in proving on the balance of probabilities that he was injured by reason of the negligence of an unidentified blue car. This is so when regard is had to the two central ways the case is put:
(1)It cannot be accepted that the blue car acted in the manner alleged by the plaintiff;
(2)Even if it were accepted the blue car acted in the manner alleged, the evidence is insufficient to prove on the balance of probabilities, that such behaviour was negligent.
2 The incident occurred on Princes Highway, city bound, between the intersections of Chandler Road and Fintonia Road. The physical layout of the scene can best be described from this graphical representation.
Diagram 1 – The location of the incident.
3 The plaintiff’s evidence is that on the date of the incident, he was driving his Nissan 350Z to pick up his girlfriend from her grandmother’s house in Fintonia Road, Noble Park[1]. He was driving along Princes Highway,[2] toward the city.[3] It was a beautiful day.[4] He reached a traffic light, which is now known to be at the intersection of Chandler Road and Princes Highway. He was the second car in the middle lane, stopped at the lights.[5] There was a car to his left as well[6], though whether it was the first or second car in the left lane is unclear.
[1]Transcript (“T”) 28, Line (“L”) 25
[2]T29, L21
[3]T29, L24
[4]T30, L14
[5]T30, L18
[6]T30, L19
4 The lights turned green[7] and the plaintiff moved forward. This section of road has a speed limit of 80 kilometres per hour.[8]
[7]T30, L23
[8]T157, L17
5 About 70 metres later, the plaintiff said the following occurred.[9]
“…I put my indicator, I head check, shoulder check [the transcript here records indistinct word or words] the middle I check, not car was there. Once I get complete with the line in the middle, like in the left lane, I see the blue car is really coming fast, it’s really fast, I’m [this is likely an error in transcription and the word should be ‘him’] flashing the headlight. On that time I’m scared, I don’t know what to do. I’m then trying to go back to the middle lane which is – I see the other car was there already got my spot so I can’t go back to that lane. Only option I had to save from this collision, I press the accelerator, that was my [indistinct] I had and then I did, I lost the control and then I [indistinct] and this all happen.”
[9]T30, L24
6 The plaintiff then crashed into a tree.
7 To establish some details of the topography, the plaintiff identified the distance from the intersection of Chandler Road, where the plaintiff stopped at the lights, to the tree was 100, up to 150 metres.[10] At one stage, he said that distance might be “… 170 metres or less than that”.[11]
[10]T32, L16
[11]T36, L29
8 In cross-examination, the plaintiff gave further evidence about his movements as he left the middle lane to go into the left lane. He accepted that he had moved completely into the left lane when he first saw the blue car,[12] coming very fast and flashing its lights for the first time.[13] At that stage, he said his speed was “really slow”,[14] which he estimated at 50 kilometres per hour.[15] He estimated that when he first saw the blue car, it was 100 metres or 50 metres away.[16]
[12]T64, L3
[13]T66, L28
[14]T66, L21
[15]T66, L27
[16]T67, L14 - L15
9 To get away from the blue car, the plaintiff said “… I put the accelerator to bring my speed back to 80 or 70 something”[17].
[17]T66, L23
10 This acceleration allowed the plaintiff’s car to “speed away” from the blue car.[18] The obvious conclusion must be, and I find, the blue car was going slower than the 70 or 80 kilometres per hour the plaintiff says he was doing. It might be suggested that the blue car slowed when confronted by Mr Alizad’s car. I could find no evidence to that effect. It is pure speculation.
[18]T68, L11
11 The acceleration caused the plaintiff to lose control of his car. He applied the brake to try to avoid the impact with the tree, but could not. The nose of the car was against the tree and the rear at right angles, intruding halfway into the left lane of the Princes Highway. The diagram below sets out the positioning at rest.
Diagram 2 – The position of the Plaintiff’s car at rest after the incident.
12 The plaintiff gave somewhat conflicting evidence about the position of the blue car when he hit the tree[19]. He was asked:
Q.“And this car was right behind you when you ran into the tree?---
A.Yes.”
[19]T65, L22
13 Then later he said that just prior to striking the tree, the blue car had overtaken him quickly[20] when he lost control[21]. He said that the blue car overtook him by moving into the very right-hand lane and going past. This version of events is shown here.
Diagram 3 – The Plaintiff’s version of events, the blue car overtakes the Plaintiff in the far right lane.
[20]T68, L23
[21]T69, L14
14 I do not accept the plaintiff’s version of events is capable of satisfying the Court that the incident occurred in the manner described. This is for the following reasons.
15 First, the position of the blue car is alleged to have been such that it was coming up on the plaintiff very fast. This was in part because the plaintiff’s speed on entering the left lane was only 50 kilometres per hour in an 80 kilometre zone. The plaintiff accepted the blue car was travelling faster than he was at this time. This means it closed the distance to the plaintiff so that it was “right behind” him when he ran into the tree. Given the position the plaintiff’s car ended up in,[22] as blocking half of the left hand lane, the blue car travelling “very fast” and “right behind” the plaintiff’s car at the time of the crash, I find, would have had no time to take evasive action. This finding is made having regard not only to the witness testimony but also the objective facts, motives and overall probabilities.[23] Sensing this was the direction the defendant’s cross-examination was taking, the plaintiff then suggested, when cross-examination resumed on the second day of trial, that the blue car had in fact moved from the left hand lane – not to the middle lane as a car was already there – but to the far right hand lane to overtake. I find this is also extremely unlikely. If the blue car was in fact travelling “very fast” and was “right behind” the plaintiff at the time of impact, such a manoeuvre is almost impossible to imagine. Further, the notion that the plaintiff witnessed the blue car traverse from right behind him across the middle lane and into the right hand lane to be in a position to overtake while he was attempting to control his car, which was out of control and heading for a tree, is I find an almost unbelievable version of events.
[22]Court Book “CB” 170
[23]Nominal Defendant v Smith (2015) 73 MVR 257, Leeming JA at [77] and [91]; Fox v Percy (2003) 214 CLR 118 at [28]
16 Second, it is relevant to consider the plaintiff’s manner in giving evidence. I found it extremely useful to watch the plaintiff give his evidence and the manner in which he reacted to being asked various questions. It must be remembered that the plaintiff is a refugee to Australia who endured terrible abuse at the hands of captors in Afghanistan, his home country. He fled from Afghanistan in about 2010 to Thailand and then Indonesia. He spent time in detention camps there, before arriving in Australia by boat. He spent further time in detention camps awaiting immigration processing. He did not learn English substantially until he arrived in Melbourne in about 2012. At the time of the incident, English was not his first language and he was only just beginning to learn it. Between the time of the accident and the giving of evidence in Court, he has had a very tumultuous life. He has had major surgery, been the subject of a number of assaults and his relationship with his wife has broken down such that he is estranged from her and also a young son. Taking into account that background and that the experience of giving evidence in a foreign language was difficult for him, I formed the impression that his evidence was being tailored to suit his case. This was particularly so when the circumstances of the accident were delved into by senior counsel for the defendant in cross-examination. By the end of the first day, it was apparent that senior counsel for the defendant was leading the plaintiff to the proposition that if the blue car was right behind the plaintiff at the time of the collision with the tree and was travelling very fast, then the blue car’s path would have been blocked by the position of the plaintiff’s car after the impact with the tree. The plaintiff, on the first day of cross-examination, had no explanation for why the blue car would not have been automatically stopped behind his car. However, on the second day and for the first time, he volunteered that the blue car had not only moved from behind his car completely over to the right hand lane, but that he had witnessed this as his car was out of control and heading for a tree.[24] The manner in which the plaintiff gave this evidence clearly suggested to me that this version of events had recently been brought into existence to meet the argument being put to him by senior counsel on the first day of cross-examination. This view is fortified by a number of other inconsistencies in the plaintiff’s giving of evidence, which undermine his credit and throw into doubt the veracity of his evidence overall such that I find it unreliable.
[24]T84, L20 – L27
17 This is significant because the plaintiff’s version of events is not corroborated by other witness accounts or physical evidence. The allegations of negligence rested squarely on an acceptance of the plaintiff’s version of events.
18 Numerous examples of such unreliability were proffered by the defendant to undermine the plaintiff’s version. First, however, something must be said of the plaintiff’s demeanour in giving evidence. I found it extremely useful to watch the plaintiff as he gave evidence. Trying to account for his background, language problems and the difficulties posed by a new environment such as the Court, I formed a view that the plaintiff’s demeanour was unsatisfactory. He was at times non-responsive to direct questions, he rambled and often interrupted the cross-examiner. I had to repeatedly ask for him to answer the question posed.[25] Overall I did not consider him an impressive witness.
[25]T50, L6. See also T54, L38 – L31; T66, L11; T80, L17, T92, L27 and T125, L15
19 Turning to specific instances where there are said to be inconsistencies, untruths or unreliable evidence, the defendant raised the following matters in support of its argument that the plaintiff’s evidence should not be accepted.
20 First, the defendant alleged the plaintiff had been untruthful in his serious injury affidavit where he alleged earnings of $800 net per week. In contrast, his payslips recorded net earnings of only between $300 - $700 weekly.[26] The plaintiff in evidence said that he had given his documents to his lawyers who made the relevant assessment. I find not much turns on this point. When regard is had to the payslips and Exhibit P1, being the letter from the hire contract firm, it is clear that his earnings were about $800 gross not net. It was an error of the drafter of the affidavit and no fault of the plaintiff. Mr Richards QC, for the plaintiff, conceded this fault.[27]
[26]Exhibit D1
[27]T241 L19
21 Second, the defendant pointed to categorical inconsistency in his evidence as to what he said at the scene to police. He said he told the police at the scene that the blue car “… come really fast from my behind …” and caused the accident.[28] Yet when pressed as to this version, he immediately retreated to say that “… I can’t remember what I said to police on that time because I was shocked”.[29]
[28]T63 L10
[29]T63 L20
22 Third, the Defendant pointed to the inconsistency in Mr Alizad’s allegations as to the blue car. One of the police officers, Senior Constable Dale, was called to give evidence. In cross-examination he said:[30]
“Q:But certainly your recollection is that he was trying to take evasive action to avoid hitting a vehicle that was in the inside lane?
A:That’s what he said. He was changing lanes and there was a car already in that lane and he’s taken evasive action and instead of the vehicle I suppose hit a tree.”
[30]T157 L7
23 Further, the note from the hospital admission records “… attempted lane change – not knowing another car came in – front the other lane – lost control and swivelled – head-on collision with tree on the side”.[31]
[31]CB 290
24 When looked at in context with the other evidence in the case, it seems clear that the evidence first given was at least in part accurate – that another car was involved in his accident.[32] However, it is that inaccuracy, the assertion the other vehicle was travelling fast or very fast, that the defendant focusses on with some force. It is an assertion which is not reflected in any other evidence, yet it was clung to ferociously by Mr Alizad.[33] I consider this discrepancy to be of real relevance in assessing the veracity of the plaintiff’s evidence. This factual recounting of the occurrence of the accident was of great significance to the plaintiff’s case. Yet, after being adamant about a contemporaneous reporting of the speed of the blue car, he immediately recanted. This was unimpressive. Similar instances occurred on several other occasions I will come to and detracted from my acceptance of his evidence.
[32]T63 L10
[33]T63, L10
25 Fourth, the defendant pointed to the discrepancy between his lawyer’s recounting of the accident to the TAC and his evidence. In a letter, written 12 May 2016,[34] his lawyers had written to the TAC in the following terms:
“He was about halfway into the left lane when he saw a Ford car in his rear view mirror rapidly approaching in the left lane at what appeared to be speeds of over 100 kilometres per hour in an 80 kilometre zone.”
[34]CB 72
26 His evidence was different to that in that he asserted being fully in the left lane when he saw the blue car.[35] To explain that difference, Mr Alizad blamed interpreting when his solicitors took his instructions. It was also pointed out that the letter contained no reference to the flashing of headlights by the blue car. When pressed about why this did not feature in his solicitor’s letter the plaintiff said:[36]
“I told them and I told the police as well the first about these things but I don’t know why they didn’t write it. I told them everything.”
[35]T96, L14. See also T96, L18
[36]T97, L12
27 This was entirely inconsistent with evidence he had just given which was that at the time of the accident “… I can’t talk English at all”.[37]
[37]T97, L5
28 It is inconsistent because quite clearly he could speak English – as Senior Constable Dale recounts Mr Alizad relaying the circumstances of the accident, as did the hospital notes.[38]
[38]CB 290
29 Even if he could not speak English then, he had an interpreter with him when speaking to his lawyer, who interpreted a version for his lawyers to record in their letter to the TAC, which is substantially different to that put to the Court. His evidence on these points was unimpressive and contradictory. I do not accept it and do not rely on it.
30 Sixth, it was put that the evidence as to his speed was inconsistent and ought not be believed. Particularly, that he told the hospital staff that he was travelling over 80 kilometres per hour at the time of the accident.[39] Yet in evidence he denied this.[40] I do not place very much weight on this contradiction. Notes taken of a man of limited English immediately after the shock of the motor vehicle accident and in pain from a vertebral fracture are unlikely to be an exact recounting of what was said.
[39]CB 287 and 289
[40]T88, L17, T89, L7 and T89, L21
31 Seventhly, it was put that after he was physically assaulted some years after the motor vehicle accident, he was threatened by a group of fellow Afghanis not to speak about the assault. He immediately denied this.[41] Then almost immediately admitted his memory was poor and that he could not recall these finer details.[42] This was another example of backtracking or recanting evidence previously given.
[41]T123, L26
[42]T124 L7
32 Eighthly, it was put that he falsely claimed he was not a driver who speeds.
“Q:You say you never drive over the speed limit?---
A:Yes, like not going to like driving like crazy one, like that, no. Myself, maybe some time if it happened really it was rarely, but never, no, not like that…”[43]
[43]T49, L9
33 It was then put to Mr Alizad that since the accident there had been numerous speeding fines issued to him.[44] These speeding fines occurred as follows: two on 4 April 2015[45], 7 May 2015[46], 25 August 2015[47], 21 July 2016[48], 31 October 2016[49], 9 November 2016[50], 6 February 2017[51], 20 March 2017[52] and 16 May 2017.[53] It is not necessary to detail each one of them but the plaintiff’s response was to suggest a friend had been driving his car and incurred the fines.[54] When it was pointed out that his car was written off, Mr Alizad then gave evidence that he had bought another car some eight or nine months after the accident. This was so even though he gave evidence that he was struggling to drive.[55] He made the point that his friend could then drive him to medical appointments. He gave evidence that in between times, his friend drove the car and racked up fines which Mr Alizad then gave evidence he paid because he was too late in nominating his friend. The manner of his giving evidence and the story lacked plausibility. For example, a man without a job having the money to buy another car so soon after the writing off of his own car is curious. It beggars belief however, that he then repeatedly failed to nominate his friend to pay fines in the hundreds of dollars. This is bolstered by the fact that the friend was never called and some evidence was given that he had now moved and was uncontactable. The way this evidence was given led me to wonder at its veracity. Further, on 25 August 2015, Mr Alizad was fined for speeding, being 35 kilometres per hour in excess of the speed limit. His explanation was that his girlfriend was unwell and needed to go to hospital urgently.[56] When pressed on this, however, he could give no evidence of what his girlfriend’s medical condition was. Once again, this is difficult to believe. In another instance, he admitted to driving while suspended and suggested it was because he was going to see a psychologist at the time.[57] Then, it was put that on 6 February 2017 he was charged with an offence of careless driving of a South Australian registered vehicle.[58] The importance of this is that the driver must have been stopped by police and given their details rather than it being a traffic camera offence where another driver might have been implicated. When confronted with this,[59] Mr Alizad seemed to suggest that it was a hire car. He otherwise denied knowing about this offending. I did not believe this denial.
[44]CB 218
[45]CB 222
[46]CB 220
[47]CB 218
[48]CB 216
[49]CB 214
[50]CB 212
[51]CB 210
[52]CB 208
[53]CB 206
[54]T106, L24
[55]T107, L6-14
[56]T111, L6
[57]T112
[58]CB 210
[59]T115, L18
34 Overall, the evidence of his driving habits after the accident was completely unsatisfactory and unimpressive. I formed the view that I could believe little of what was said. It supports my overall finding that the plaintiff’s evidence could not be relied upon with any confidence.
35 Ninthly, the defendant pointed to what it put was the propensity not to be wholly truthful. It was put that Mr Alizad had had an admission to hospital when a car part exploded and he had a wound to his abdomen.[60] Mr Alizad would not accept this and kept referring to an incident where he had stabbed himself in the stomach with scissors because the accident had made him suicidal. When both entries were put to him as being separate matters, separated by months, he refused to concede the car explosion matter at all. It reinforced the perception that he simply wished to put before the Court matters favourable to his case.
[60]T113 L6
36 To this extent, there are two pieces of evidence I consider significant from Dr Etherington, his treating spinal surgeon. These pieces of evidence tell against the acceptance of Mr Alizad’s evidence. First, Mr Alizad gave evidence that Dr Etherington had told him he could not work again at all. Dr Etherington gave evidence to the contrary.[61] Dr Etherington gave evidence in a manner which was calm and thoughtful. He impressed as a medical practitioner who took a slow and methodical approach in his treatment of Mr Alizad. He gave evidence in the same way. I accept his evidence in preference to Mr Alizad’s. But it has a further effect in that it casts Mr Alizad’s evidence into the light as evidence tailored to a specific end: that to suit his own case.
[61]T191 L6
37 The second point of Dr Etherington’s evidence is that he outlined the slow treatment plan that he had for Mr Alizad. It was slow because Dr Etherington wanted to eliminate all possible causes for the significant ongoing pain that Mr Alizad had prior to resorting to surgery. This took some years and various treatment modalities. Dr Etherington explained that after surgery and with no reduction in pain, at all, he was left with the distinct possibility the ongoing problems were non-organic.[62] Then to the suggestion put in cross-examination that Mr Alizad “… could be just exaggerating for the purposes of the court case? …” he answered “Sure”. This evidence was not given by an over-confident surgeon but Dr Etherington’s impression that his measured structured approach had led him to a scientific conclusion. I accept his evidence on this point.
[62]T189 L14
38 In this case, then, where the allegations of negligence depend almost solely on the plaintiff’s recounting of events, I am unable to find in the plaintiff’s favour. The plaintiff has not discharged his burden of proof on the balance of probabilities that the blue car acted in a manner which the plaintiff described in evidence. In summation this is because I cannot rely on the plaintiff’s evidence to any great extent. To the extent that I can rely on it, it is only that evidence which is corroborated by the evidence of Senior Constable Dale and the evidence of the contemporaneous recording in the hospital admission notes.[63] All that can be said with any confidence is that after leaving the intersection lights, the plaintiff proceeded in the middle lane and then at about the 100 metre mark began to change into the left hand lane. At that point there was another vehicle in the left hand lane. For whatever reason the plaintiff then attempted to accelerate and crashed his vehicle. Beyond that, it is difficult to go. This leaves me in the position of being not satisfied that the plaintiff has proved on the balance of probabilities that the blue car acted in a negligent manner.
[63]CB 290
39 I will dismiss the plaintiff’s claim.
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