Aluabaid v Kilani
[2022] ACTCA 31
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Aluabaid v Kilani |
Citation: | [2022] ACTCA 31 |
Hearing Date: | 4 November 2021 |
DecisionDate: | 24 June 2022 |
Before: | Loukas-Karlsson, Rangiah JJ and McWilliam AJ |
Decision: | 1. The appeal be allowed. 2. The orders of the primary judge made on 14 May 2021 be set aside. 3. The proceeding be dismissed. 4. The respondent pay the appellants’ costs of the appeal and the proceeding below. |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Negligence – Motor Vehicle Accident – whether primary judge erred in accepting plaintiff’s evidence – where plaintiff’s credibility challenged – acceptance of plaintiff’s evidence contrary to compelling inferences – appeal allowed – orders of primary judge set aside - proceeding dismissed with costs. |
Legislation Cited: | Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Warren v Coombes (1979) 142 CLR 531 |
Parties: | Nashaat Hamid Aluabaid (First Appellant) Transport Accident Commission – Victoria ABN 22 033 947 623 (Second Appellant) Adam Kilani ( Respondent) |
Representation: | Counsel W Fitzsimmons SC ( Appellants) W Sharwood of counsel ( Respondent) |
| Solicitors Moray & Agnew ( Appellants) Gabbedy Milson Lee ( Respondent) | |
File Number: | ACTCA 24 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Elkaim J Date of Decision: 14 May 2021 Case Title: Kilani v Aluabaid Citation: [2021] ACTSC 90 |
LOUKAS-KARLSSON AND RANGIAH JJ:
In Kilaniv Aluabaid [2021] ACTSC 90, a single judge of this Court gave judgment for the respondent (the plaintiff at first instance) in the sum of $181,500 plus costs. The appellants (the defendants at first instance) appeal from that judgment.
The proceeding was a claim for damages for personal injury arising from a motor vehicle accident. The respondent alleged that at about 1 am on Monday, 8 October 2018, he was driving along a quiet road when another car drove up from behind fast and aggressively. The respondent claimed that he pulled over to the side of the road, but the other car slammed into the back of his car, before fleeing the scene. The accident was not witnessed by anyone else.
The appellants did not plead that the claim was staged, presumably because they considered it would be improper to do so in the absence of positive evidence of fraud, and accepted that there had been a collision. However, they mounted a strong attack on the credibility of the respondent’s evidence, arguing that his credit was so damaged that his account of the accident should not be accepted. The appellants contended that the respondent had failed to prove that the accident was caused by the negligent driving of the other driver.
While accepting that there was substance in the appellants’ attack on the respondent’s credit, the primary judge ultimately found that the collision had occurred substantially in the manner alleged by the respondent. His Honour found that the respondent had been injured as a result of the negligence of the other driver and awarded damages accordingly.
The Notice of Appeal contains nine overlapping grounds. The appellants focus principally upon the seventh ground, which alleges that the primary judge erred in accepting the respondent’s account of the accident to be credible. The third ground raises an allied argument that his Honour erred in failing to have adequate regard to the unchallenged evidence of an expert engineer which contradicted substantial parts of the respondent’s account. It is unnecessary to consider the remaining grounds.
We will proceed by describing the evidence of the respondent, the medical experts and the expert engineer and the findings of the primary judge, before considering the relevant grounds of appeal.
The evidence of the respondent and the medical experts
The respondent gave evidence with the assistance of an interpreter. His evidence was that on the afternoon of Sunday, 7 October 2018, he encountered a friend, Jaffa Sadaq, at McDonald’s in the Canberra CBD. Mr Sadaq explained that he had domestic problems and had decided to leave for Sydney.
The respondent persuaded Mr Sadaq to remain in Canberra, and offered to allow him to stay temporarily at the respondent’s office in Fyshwick. The respondent then drove Mr Sadaq to the respondent’s home in Red Hill. The respondent’s car was an Audi sedan.
The respondent later took Mr Sadaq to the office in Fyshwick and settled him in. The respondent then returned to Red Hill, where he collected food his wife had prepared, and returned to the office.
Mr Sadaq then had a change of heart and wanted to return to his own home in Tuggeranong. The respondent drove Mr Sadaq to Tuggeranong.
The respondent was returning home at about 1 am on Monday, 8 October 2018, following a route that took him north along Mugga Lane in Red Hill.
The respondent’s evidence was that he noticed another car driving very fast and closely behind him, with its lights on high beam. He could not immediately pull over, but did so when an opportunity arose. His evidence was:
Then after, when I stop, I just - he is hit me from my back. From my - back my car….When I stop - yes, when I stop in this - I see some space to stop. Straight away he is come very fast and hit me from back.
The respondent confirmed under cross-examination that he had brought his car to a stop before the collision.
A photograph taken by the respondent following the accident shows the Audi positioned at the left side of the road, partly over a bicycle lane and partly on the driving area of the road, facing straight ahead.
The Audi was pushed forward. The respondent’s evidence was that, “my car is go couple of metres or something like this ...” Later he said, “Yes, I say like, he push me one metre but I not sure one metre or two metre or half.” His car did not spin, but may have been pushed a little to the left. The respondent said he had pain in his shoulder and was shaken and afraid.
The other vehicle was a Toyota Prado, a large four-wheel-drive. The respondent’s evidence was that after the accident the driver, “wanted to flee or to take off and overtake me”. The respondent took a photograph of the Toyota straight away using his mobile phone. The photograph shows the Toyota driving away past the front right of the Audi and captures the Toyota’s registration plate. The respondent did not see the other driver. The respondent’s evidence was that the Toyota had not reversed before driving past his vehicle following the accident.
The respondent telephoned triple zero but was told that he should report the matter to the local police station as it was not an emergency. He did so, but says he initially confused the registration number of the Toyota and gave the police the wrong number. After he corrected his mistake sometime later, the police were able to identify the vehicle as belonging to the second appellant, and that it had been reported as stolen in Melbourne the day before the accident.
The respondent was able to drive the Audi home, but it was later “written off” by the property insurer, NRMA. The Toyota was located sometime after the accident and was inspected.
The NRMA’s inspection report stated:
I have inspected the Audi on Wednesday, 6 February 2019, Toyota on Thursday 7 February 2019 and collision location on Wednesday, 6 February 2019. The following is my initial opinion:
There are vertical scratches to the rear bumper cover, boot lid and Passenger side rear quarter panel of the Audi that indicates the vehicle has undergone a rear to front impact, which is consistent with the collision circumstances. The damage profile to the rear of the Audi is biased towards the Passenger side of the vehicle, which is unusual given the diver’s version of events, where they were stopped on the left side of the road…There are vertical scratches to the front bull bar of the Toyota that indicates the front of the vehicle has undergone a front to rear impact, which is consistent with the scratched profile on the rear of the Audi and is consistent with the collision circumstances. The damage to the front of the Toyota is biased towards the Driver’s side of the vehicle, which is consistent with the damage profile to the rear of the Audi and consistent with the circumstances. The Toyota is compatible with the Bosch CDR kit but as the key was not present at the time of the Author’s inspection, the data from the Airbag Module of the Toyota could not be extracted. There were no obvious collision marks observed at the collision location (approximately 4 months after the collision occurred). The Author expected debris attributable to the Passenger side tail light cluster but this could have been swept away by passing traffic. At this point, the forensic evidence indicates that the Audi and Toyota have impacted each other in a manner that is consistent with a collision between two vehicles and consistent with the collision circumstances.
The inspector observed that the damage to the Audi was biased towards the passenger side of the vehicle, which was unusual given that on the respondent’s version of the incident, he had stopped on the left side of the road. The inspector concluded that the damage to the front of the Toyota was biased towards the driver’s side of the vehicle, which was consistent with the damage profile to the rear of the Audi, and consistent with the claimed circumstances of the collision.
The respondent alleged that he had sustained injuries to his lower back and left shoulder as a result of the collision.
The respondent owned a business called, “Precision Painting Contractors”. He gave evidence that he had not worked since the accident, apart from four days’ work about three weeks before the trial when he tried to do some painting. The pain prevented him from continuing.
The respondent consulted a general practitioner on 9 October 2018, the day after the accident. He was given a medical certificate certifying him as unfit for work for three days.
On 13 October 2018, the respondent attended the Emergency Department at Canberra Hospital where he complained of lower back pain. He returned two days later complaining of continuing pain.
On 18 October 2018, the respondent consulted a general practitioner, telling the doctor that he was suffering from lower back pain and had a restricted arc in his right shoulder.
On 25 January 2019 the respondent had an MRI scan of his lumbar spine. This revealed a, “small left L 4/5 posterolateral disc protrusion and disc annular tear with possible secondary left L4 nerve root irritation.”
On 13 March 2019, the respondent had an MRI scan of his right shoulder. The scan revealed a, “moderate to high grade partial thickness tear in the supraspinatus tendon posteriorly and infraspinatus tendon anteriorly.”
The primary judge accepted that the two scans demonstrated objective signs of injury to the respondent’s lower back and right shoulder respectively.
The respondent’s general practitioner sent him to see Dr Damiani, an orthopaedic surgeon, who recommended right shoulder surgery. The respondent had been placed on a public waiting list. Surgery was not anticipated for at least another 18 months.
The respondent obtained medico-legal assessments from Dr Eaton, an occupational physician, and Dr Pillemer, an orthopaedic surgeon.
Dr Eaton considered that the lower back injury was consistent with a, “whiplash associated disorder of the spine”, and consistent with the motor vehicle accident. Dr Eaton said that the injury to the respondent’s right shoulder was to the rotator cuff and required surgical repair. Dr Eaton thought the respondent could carry out sedentary work, with some pain and discomfort. Dr Eaton did not think the respondent could safely and comfortably perform all the normal duties of an independent painting contractor.
Dr Pillemer confirmed the diagnosis of a rotator cuff injury and injury to the lower back. He did not think the respondent was fit for his employment as a painter.
The appellants obtained two reports from Dr Machart, an orthopaedic surgeon. Dr Machart considered that there was an articular surface rotator cuff disruption and a small disc protrusion. On face value, the pathology could be attributed to the motor vehicle accident. However, similar pathology could also be non-traumatic. Dr Machart considered that the history of total disability since the accident, and no benefit from treatment or rest, was unusual.
Dr Machart indicated that it did not appear likely there was substantial injury to the lower back or shoulder from the motor vehicle accident consistent with the severity of the ongoing symptoms and disability. Dr Machart diagnosed a soft tissue injury which would have been reasonably treated by physiotherapy and analgesics for six weeks. He acknowledged that “on face value”, the respondent did not appear to be fit to work as a painter.
In his second report, Dr Machart stated that, “the radiological pathology did not appear to be consistent with the mechanism of injury”.
Dr Eaton was cross-examined. Dr Eaton had been given a history of the Toyota travelling at high speed when the collision occurred. It was suggested to the doctor that if the speed was significantly lower, closer to 20 km/h, then the rotator cuff injury would not have occurred. Dr Eaton conceded that the injury was less likely to have occurred at a lower speed but he could not say that the injury would not have occurred, even at 20 km/h. He said that a specific answer would require the expertise of a biomechanical expert.
Dr Pillemer was also cross-examined. His evidence was that significant stresses could be imposed on a body even at low speed. In this case, such stresses would not be surprising bearing in mind that the Audi, a sedan, was struck by a large four-wheel-drive vehicle with a bull bar.
Dr Machart’s expertise was not challenged and his report was admitted into evidence without being required for cross-examination. His Honour considered he was not required to accept Dr Machart’s opinion or the breadth of his expert knowledge, and the fact that his report went into evidence without objection did not confer any particular amount of weight upon the report.
The primary judge preferred the opinions of Doctors Eaton, Pillemer and Damiani over Dr Machart’s. His Honour was satisfied that the respondent suffered both a rotator cuff injury to his right shoulder and a soft tissue injury to his lower back.
Mr Urquhart’s report
Mr Urquhart is an engineer who specialises in examination of motor vehicle collisions. He provided a report dated 31 March 2021, which was admitted into evidence without objection. Mr Urquhart’s expertise was not disputed and he was not required for cross-examination.
Mr Urquhart’s sources of information included the respondent’s accounts of the accident and photographs taken at the scene of the accident by the respondent.
In a claim form lodged with the income protection insurer, the respondent had described the accident as follows:
I was driving on Mugga Ln, Symonston, ACT 2609 on 8/10/2018 around 1am. I was driving on a speed limit and someone behind me drove very fast. I was trying to give way to this driver by pulling over on the side, when I was pulling over on the side, he hit my car from behind & ran over fastly. Then I took a picture of his car & reported to the police and lodged a police report.
(Errors in original.)
In a Motor Accident Notification Form, the respondent stated:
I was driving on speed limit and someone behind me was going very fast, I tried to give him way by bulling [sic] over, but before I bulled [sic] on the side he hit me and run away. I quickly took a picture of the car, and reported to the police station.
(Errors in original.)
In response to a question concerning who, or what, caused the accident, the respondent answered, “Driver behind me was going very fast”.
The respondent took part in an interview with an insurance investigator on 24 December 2018. Mr Urquhart summarised the respondent’s answers as including the following:
·The [respondent] stated that he was travelling along Mugga Lane towards his friend’s house. The insured vehicle was behind him and travelling “very fast” and using “high lights”. The [respondent] was travelling at 60 kph in a 60 kph speed zone. He pulled over to the left and stopped completely about 50 to 100 metres from the intersection. The [respondent’s] vehicle was struck from behind by the insured vehicle.
·The [respondent] was unsure how long the insured vehicle was following him. The [respondent] stated that he braked [not hard] and came to a complete stop. Although unsure, the [respondent] stated that the insured vehicle was “not far away” and possibly about 20 metres behind when the [respondent] decided to brake. And he confirmed that the vehicle accelerated into the back of his car.
·He estimated the insured vehicle was travelling about 80 kph when it struck his vehicle.
·After impact, the [respondent] indicated that the insured vehicle did not reverse but kept driving. He did not see any damage on the front of the insured vehicle. He described the vehicle as “very big and he have in the front like bull bar.” The airbags in the [respondent’s] vehicle did not deploy.
·After impact, the [respondent’s] vehicle was pushed forward about one metre.
·After the collision the [respondent] drove his vehicle home. He stated it was “not safe to drive” but it wasn’t far and he drove slowly.
·He estimated that he was stopped for “just three seconds” before the impact.
·He estimated the insured vehicle was travelling at 80 kph, and “was faster than me.”
·The [respondent] stated that at the time his headlights were operating on low-beam, the taillights were working, and he used his indicator as he pulled over. He stated the driver behind was flashing the high-beam.
·After the impact, the [respondent’s] vehicle did not collide with any other object. He stated his tyres remains inflated and the street lights were operating. He described seeing “glass and things” on the road but that he tried to push it off the road. He stated no debris came from the other vehicle.
·The [respondent] described that his vehicle was mechanically in very good condition, as were the tyres.
(Italics and references to material omitted. Errors in original.)
Mr Urquhart stated that photographs showed damage to the passenger side of the rear of the respondent’s Audi. The damage to the Audi was consistent with an offset impact to the near side (passenger side), with a near 50% overlap. The damage was consistent with a rear end collision with a vehicle fitted with a bull bar. He noted that an insurance inspector had observed vertical scratches to the front bull bar of the Toyota, with damage biased towards the driver’s side of the vehicle.
Mr Urquhart noted that Mugga Lane is a two lane, two way road, with a bitumen surface. There are bicycle lanes along the sides of the road. The roadway and bicycle lanes are separated by a solid white line.
Mr Urquhart considered that the damage to the Audi was consistent with a rear end collision, offset to the near side. He considered that the line of thrust would generate a pushing action which would cause the Audi to rotate in a clockwise direction. He noted that a photograph taken after the accident depicted the Audi as parallel to the roadway, straddling the solid white line. It did not appear to have undergone any, or any substantial, rotation. That indicated either that the impact was at low speed, or the Audi was oriented to the left prior to the accident and then rotated after impact. He noted that the respondent had not described any post-impact rotation.
The respondent had described his vehicle as being pushed forward about one metre. The respondent had also said that after impact, the Toyota did not reverse, but left the scene moving forward. Mr Urquhart considered that, given the turning circle of a Toyota Prado and the likely position of the vehicles at impact, to steer out from behind the Audi would require a separation of at least four metres.
Mr Urquhart considered the impact on the left half of the rear of the Audi to be highly unusual. It would suggest the Toyota attempted to “undertake” between the Audi and the kerb.
Mr Urquhart said that the respondent’s estimate of the Toyota travelling at about 80 km/h was highly unlikely. He considered that the damage to the Audi was consistent with an impact speed of, “between 20 and 40 km/h, probably at the lower end.” The distance travelled by the Audi post-impact and the lack of rotation was also consistent with a low speed impact.
The judgment of the primary judge
The primary judge noted that the appellants had attacked the respondent’s credit, not only to reduce damages, but to reach a position where his credit was so depleted that his evidence about the accident could not be accepted.
The primary judge accepted that, “[t]here was substance in the attack on the plaintiff’s credit”, and “[t]his became readily apparent during his cross-examination on his economic loss.” His Honour then addressed several matters affecting the plaintiff’s credit.
At the time of the accident, the respondent was a self-employed painter through his business, Precision Painting Contractors. The respondent claimed past economic loss at $2,480 per week, said to have been established through payslips. His Honour accepted that these payslips, “were not genuine, but had been prepared by an unknown person to assist [the respondent] in obtaining a loan.” His Honour stated that the payslips were “entirely inconsistent” with the respondent’s tax returns, which revealed a taxable income of $56,485 for the year ending 30 June 2018. This figure was consistent with his profit and loss statement which showed income of $75,909 and expenses of about $20,000.
The primary judge considered there must be some doubt about the reliability of the figures in the profit and loss statement. The respondent’s evidence was that his business would earn income either by providing labourers to another business and receiving, in effect, a commission, or by doing the work himself. An invoice book was tendered. The respondent was asked to explain why invoices said to have been provided to a Mr Ali of Ready Group remained in the book. His Honour said that the respondent explained, “somewhat unconvincingly”, that if Mr Ali required an invoice, he would take a photograph of it on his telephone.
His Honour noted that yet another estimate of the respondent’s pre-accident earnings could be found in a different profit and loss statement which suggested that the gross business income up to 1 July 2018 was $55,525 and the director’s fees (essentially the respondent’s income) was $47,658.
His Honour said that the “most bizarre element” of the respondent’s financial documents arose from a number of instances of purchases by credit card of goods from one Bunnings store and then a credit, on the same day, of the same or very similar amount at a different Bunnings store. His Honour noted that there might be a reasonable explanation for these transactions, but the respondent had certainly not provided one. His Honour said that the respondent’s speculation that his brother might have been responsible was, “far from convincing.”
The primary judge noted that the respondent’s Audi vehicle had been purchased for cash in Victoria for between $17,000 and $20,000. The respondent had travelled to Victoria to purchase the vehicle. When the vehicle was registered in Canberra, the registration form indicated that its market value was $10,000. However, the vehicle was insured with NRMA for $38,000. His Honour said that it took, “little imagination to conclude”, that the minimisation of the market value was designed to reduce stamp duty and that the high insured sum was to cater for maximum return if the vehicle was destroyed or stolen. However, his Honour concluded that the evidence did not allow him to conclude that the respondent was responsible. It could equally have been his father, the owner of the vehicle.
The primary judge noted that Dr Eaton conceded that the respondent’s claimed injuries were less likely at lower speed, but would not say the injuries could not have occurred at 20 km/h. Dr Pillemer’s evidence was that significant stresses could be placed on the body even at low speed. While noting that Dr Machart had not been required for cross-examination, his Honour preferred the opinions of Drs Eaton and Pillemer and found that the respondent had suffered a rotator cuff injury to his right shoulder and a soft tissue injury to his lower back.
The primary judge noted that Mr Urquhart was not cross-examined and accepted that, “it would be a denial of fairness to him if my comments on his report were overly critical”. His Honour was nevertheless, “concerned that the report has, at least, an air of conclusions being reached on the basis of surmise and speculation”, and, “a distinct emphasis on exactitude to defeat estimates given by the plaintiff on matters such as speed and the distance that he was pushed forward after the collision.”
Despite the primary judge’s indication that he would not be overly critical, he went on to stridently criticise Mr Urquhart’s report, including stating that Mr Urquhart’s comment that the NRMA report was of limited value was, “quite extraordinary”, and had, “the hallmarks of ignoring useful information because [Mr Urquhart] does not agree with the author’s opinion.” Mr Urquhart had made his comment because photographs of the Toyota had not been provided and because key information regarding the condition of the Toyota was missing. That was consistent with the NRMA report itself, which indicated that the inspector had been unable to access data for the airbag module because he did not have the car key. With respect, this aspect of his Honour’s criticism, which Mr Urquhart had no opportunity to address, does not seem justified.
The primary judge noted that Mr Urquhart had accepted that the damage to the Audi was consistent with a rear end collision with a vehicle fitted with a bull bar. Accordingly, Mr Urquhart’s report was consistent with a collision between the Toyota and the Audi.
The primary judge made the following observations at [50]:
(a)The plaintiff’s case as pleaded is simple. It says no more than that the plaintiff was driving towards Red Hill on Mugga Lane when the Toyota collided with the rear of his car. It continues that after the collision the Toyota left the scene. The particulars of negligence are what might be described as ‘standard’ and include failing to keep a proper lookout and failing to pay proper care and attention whilst driving. Driving into the rear of the Audi was unquestionably an act of negligence on the part of the driver of the Toyota.
(b)Notwithstanding the defendants’ success in attacking the plaintiff’s credit in respect of his economic loss, and accepting that the effect on his credit could be ‘transferred’ to his evidence on the accident, I nevertheless formed a much more favourable view of the plaintiff’s evidence in respect of the accident.
His Honour had made the following findings at [34]-[35] about the circumstances of the collision:
34. The plaintiff noticed a vehicle that was driving very fast and closely behind him and had its lights on high beam. He could not immediately pull over but did so when an opportunity arose. He brought his car to a stop in a position partly encompassing a bicycle lane…
35. Instead of overtaking him, the other vehicle collided with his rear...
His Honour had summarised the effect of Mr Urquhart’s report:
48.Mr Urquhart ultimately expresses scepticism about the plaintiff’s version of the accident. This scepticism seems to be derived from the following:
(a)The configuration consistent with the position of the vehicles on impact (Figure 1) should have resulted in a degree of rotation of the Audi. In other words, because the impact was to its rear left side there should have been some rotation of the whole of the vehicle towards the right.
(b)Another aspect of the configuration is the Toyota striking the left side of the Audi when an overtaking manoeuvre is more likely to have resulted in a collision with the right side of the Audi.
(c)The numerous references by the plaintiff, in medical histories and in a record of interview with an NRMA investigator, to the effect that the Toyota had been travelling at a very high speed (around 80 km/h) could not have been correct because of the absence of rotation, the degree of damage suffered by the Audi and the fact it only moved about a metre forward following the impact. The more likely speed at impact was closer to 20 km/h and not more than 40 km/h.
(d)There is an absence of debris shown in the photograph of the rear of the Audi (Figure 7). The damage to the Audi should have left debris behind the vehicle.
(e)The location where the plaintiff stopped was “highly unusual given its close proximity to the major intersection some 60 m ahead where the roadway is substantially wider, well-lit with a number of alternatives for travel”.
(f)The plaintiff’s estimate of having been pushed forward by 1 metre must have been wrong because the plaintiff said the Toyota did not reverse after the collision. Mr Urquhart found out the turning circle of the Toyota and concluded that it would have had to reverse before it could move to the right of the Audi. This conclusion is represented in Figures 5 and 6 of the report.
(g)Time and motion studies show that the plaintiff’s description of the accident was incompatible with the braking distances of the vehicles (page 36 of the report).
His Honour went on to address the grounds of Mr Urquhart’s scepticism:
51.Turning now to the assorted bases for scepticism of the plaintiff’s version, I make the following comments:
(a)The circumstances leading up to the collision were such that the plaintiff was put in a position of being harassed by the Toyota. A good deal of the defendants’ attack depended on him acting rationally when confronted with the marauding vehicle. It is all very well to suggest there was a safer place to stop or a better estimate of speed might have been made, but these are conclusions that rely on hindsight. The plaintiff did not have the benefit of observing the speed of the Toyota over any particular distance. The plaintiff was driving on a dark road without the benefit of well-lit areas along the side of the road. It was never put to the plaintiff that he was familiar with the area through which he was driving.
(b)Mr Urquhart is probably correct in his estimates of speed. But as I have said the plaintiff’s appreciation of speed would have been significantly impaired by the circumstances in which he found himself. And if Mr Urquhart is correct about the speed of the Toyota then the movement of the Audi by only about a metre and the lack of rotation are consistent.
(c)The same applies to the turning circle issue. Mr Urquhart’s approach is dependent on the accuracy of the plaintiff’s estimate of how far he moved forward. To expect, in the circumstances of this accident, any such accuracy is unrealistic and indicative, as I’ve said above, of an approach which places technical exactitude above realism.
(d)Again, in relation to the breaking times and distances, Mr Urquhart’s calculations are based on estimates of speed and time, none of which can be considered or expected to be reliable.
(e)The plaintiff said under cross-examination that he had not moved any debris off the road. But he also said that his memory was better when he gave the record of interview to the NRMA investigator. In this interview, conducted about 10 weeks after the accident, the plaintiff said, at page 34:
Q. 483 And were the pieces of your car come off on the road, glass?
A. Yes there was glass and things but just I try and push.
Q. 484 You pushed it off?
A. Yes this way.
Q. 485 Right. Might be still there.
(f)Mr Urquhart in commenting on debris uses a photograph taken at night to reach conclusions about glass on the road.
(g)As to the hit on the left side of the Audi, this is seemingly unusual, but not necessarily inconsistent with the haphazard driving style that had been demonstrated by the Toyota in harassing the plaintiff.
His Honour concluded:
52.Overall, Mr Urquhart’s approach leaves the scene of an apparently obvious rear end collision and delves into a mathematical examination of speeds, times and distances, all of which are speculative and incapable of creating the assorted doubts reached by Mr Urquhart.
53.Despite hovering on a suggestion of fraud, the allegation was never actually put. Rather a concentrated credit attack was said to render the plaintiff’s evidence unbelievable. The defendants suggested there was a concatenation of facts which simply could not have occurred, thus rendering the plaintiff’s version incapable of acceptance.
54.I accept that the onus was always on the plaintiff to prove his case. The defendants relied heavily on the decision of the New South Wales Court of Appeal in Nguyen v Tran [2018] NSWCA 215. This case emphasises that a court must “weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case” (at [54]). It also says that, relevant to this case, the defendants do not have to prove that the accident didn’t happen as alleged by the plaintiff.
55.But the accident unquestionably occurred, there are photos of the scene and of the departing Toyota and there is the corroboration provided by the plaintiff getting in touch with the police. The plaintiff certainly attempted to establish a significant economic loss claim but it was not substantiated. However the defendants did not garner enough evidence, nor have the overwhelming success on credit that was submitted, to divert me from a finding that the accident occurred as alleged by the plaintiff. This is not a shifting of the onus. This is a finding that I accept, on the whole of the evidence, that the accident occurred as alleged by the plaintiff.
The primary judge then went on to consider damages. His Honour accepted that the respondent had continuing shoulder problems which would require surgery. His Honour awarded $80,000 for general damages.
The primary judge noted that past economic loss was the most contentious of the heads of damage. The respondent’s claim was based on his 2019 profit and loss statement which showed a tax assessable income of $38,420 for 100 days’ work, said to equate to a net weekly wage of $1,932.
His Honour found:
99.I think there is substance in all of the defendants’ arguments. While I accept that the plaintiff was working before the accident, and earning an income, the assortment of possibilities as to the extent of the income precludes any reasonable assessment.
100.The profit and loss statement, and the tax returns, are no more than a reflection of what the plaintiff provided to his accountant. They are not source documents. Other than the invoice book (Exhibit 2) and nine invoices there are no source documents. The book itself is of little value. As I have said above, the plaintiff’s evidence about the invoices was difficult to accept.
101.The question then arises as to the approach that I take. As already stated, I am satisfied that the plaintiff was working and earning some sort of an income. I can only assess his loss on a buffer basis, which I accept is most unusual when deciding upon past economic loss. Senior Counsel for the defendants accepted this approach was open to me.
102.Another element that plays into my consideration is whether or not the plaintiff has actually been working. The frequent receipt of cash payments into his accounts was simply not explained. I cannot conclude they were a product of him working. But I can conclude that his failure to explain the payments is yet another imposition on the credibility of his economic loss claim.
103.More cogent evidence that the plaintiff has been working since the accident came from the tender of the statements for his Business Transaction Account (Exhibit E). While this account does record a number of business receipts before the accident, it also reveals such receipts following the accident, for example from Philip Painting, which continue up to 20 May 2019.
104.Accepting there is no science in my conclusion, I will allow economic loss of $25,000 including interest.
His Honour awarded the respondent $12,000 for future medical expenses. The parties agreed future economic loss at $50,000 and past and future domestic assistance at $6,000.
His Honour assessed the respondent’s total damages at $181,500, including interest.
Consideration
Section 37E(2)(a) of the Supreme Court Act 1933 (ACT) permits an appeal in relation to orders of a single judge of the Supreme Court to be brought before, and heard by, the Court of Appeal.
In Cornwall v Jenkinsas Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233, the Court of Appeal at [23] observed that such an appeal is, “an appeal in the nature of a rehearing, albeit that error must still be shown”. The Court of Appeal continued:
24.In such an appeal, the appellate court is obliged to give the judgment which in its opinion ought to have been given in the first instance, but in doing so it must recognise the limitations that exist where an appellate court proceeds wholly or substantially on the record. Where the facts have been determined by the trial judge, an appellate court will generally be in as good a position as the trial judge to decide on the proper inferences to be drawn from the facts…
(Citations omitted.)
In Allesch v Maunz [2000] HCA 40; 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ explained at [23] that in an appeal by way of rehearing:
…the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…
In Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy), Gleeson CJ, Gummow and Kirby JJ held:
23.…On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”...
(Citations omitted.)
It must be recognised by an appellate court that a trial judge enjoys the advantages of seeing and hearing the witnesses giving evidence and of seeing the whole of the evidence unfold. An appellate court will be slow to find error in the trial judge’s assessment of the credibility of a witness. However, a credit finding is not unassailable. In Fox v Percy, the plurality observed:
28. ... However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29.…In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion…
(Citations omitted.)
In CSR Limited v Della Maddalena [2006] HCA 1; 224 ALR 1, the High Court held:
19.…In Fox v Percy there was an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts. Like many other principles re-expressed by this Court in recent years, the change was one founded in a close analysis of the statutory provisions governing the legal task in issue. It involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments. It involved a reminder of the obligations of the appellate court, so far as it properly could, to perform its statutory functions of appellate review by way of rehearing, in a real and substantive way as the enacted law mandates.
…
21.Even in the case of expressed credibility findings, the statutory duty to conduct a real “rehearing” remains. It may sometimes justify reversal of a decision by a primary judge who has “failed to use or has palpably misused his advantage” or where “incontrovertible facts or uncontested testimony” demonstrates the findings to be erroneous; or where they are “glaringly improbable” and “contrary to compelling inferences”.
(Citations omitted.)
Bearing these principles in mind, the findings of the primary judge in the present case may be considered.
In Nguyen v Tran [2018] NSWCA 215 (Nguyen v Tran), Beazley P (the other members of the Court agreeing) observed at [57]:
…The respondent, as the plaintiff in the proceedings, bore the legal onus to establish that he had been injured in the motor vehicle due to the negligence of the appellant, and, it followed, bore an evidentiary burden to prove that he was. Otherwise his claim would fail.
In this case, the evidence established that there had been a collision between the Toyota and the respondent’s Audi. That was demonstrated by damage to the front of the Toyota corresponding to damage to the back of the Audi.
Beyond that, there was very little about the collision that was clearly established by the evidence, including when and where the collision occurred, and how it came to happen.
The only witness who could give direct evidence of the circumstances of the accident was the respondent, since the driver of the Toyota was never identified. The collision allegedly happened on a quiet, dark street at about 1 am on a Monday, and there were no independent witnesses.
In Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, Handley JA held:
… The respondents in the Compensation Court established to the point of demonstration that the worker had told deliberate lies in an attempt to obtain compensation to which he was clearly not entitled.
This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial Judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.
In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker's evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.
The respondent’s case depended upon the credibility of his evidence about the circumstances of the accident. The primary judge made firm findings that the respondent had given misleading evidence that he had not worked since the accident and about the level of his earnings before the accident. That did not require rejection of the respondent’s evidence about the accident, but made it necessary for his Honour to assess that evidence with care and caution.
The primary judge accepted the respondent’s account of the accident. His Honour found at [55] that, “the accident unquestionably occurred”. The only other passage in which his Honour sought to explain why he accepted the respondent’s account was at [50]:
…Notwithstanding the defendants’ success in attacking the plaintiff’s credit in respect of his economic loss, and accepting that the effect on his credit could be ‘transferred’ to his evidence on the accident, I nevertheless formed a much more favourable view of the plaintiff’s evidence in respect of the accident.
The primary judge did not explain why he had formed, “a much more favourable view” of the respondent’s evidence in respect of the accident. It is not apparent whether that more favourable view was because of the content of the respondent’s evidence, or the respondent’s demeanour, or perhaps a combination of both. The remainder of his Honour’s findings about the accident were concerned only with why the appellant’s credibility was not undermined by Mr Urquhart’s report, and did not explain why his Honour had found the respondent’s account of the accident to be credible. In the face of the demonstrated falsity of parts of the respondent’s evidence, the absence of any such explanation suggests that his Honour’s assessment was not approached with an appropriate degree of circumspection.
In assessing the credibility of the respondent’s evidence about the accident, it was necessary for the primary judge to consider the whole of the evidence. If authority for that proposition be required, it is Nguyen v Tran at [54]. The passages from the primary judge’s reasons concerning the credibility of the respondent’s claim for economic loss have been described above. However, a number of other concerns about the respondent’s credibility emerging from the evidence were, with respect, not adverted to by his Honour.
In his Statement of Claim, the respondent alleged that his disabilities included an, “Inability to undertake his usual employment as a painter”. It will be recalled that he operated a business called Precision Painting Contractors.
The respondent’s Statement of Particulars asserted that, “[f]ollowing the accident, the plaintiff was unable to work”, and that medical advice indicated he, “will not be able to return to his vocation as a painter until successful recovery from shoulder surgery”. Further particulars stated that the respondent had, “been unable to work in his usual occupation as a Painter, or at all, since the motor vehicle accident”.
The respondent gave sworn evidence that he had not worked since the accident, apart from a four-day work trial only a few weeks prior to the hearing, for which he had not been paid. He gave evidence, not only that he had not performed paid work as a painter, but that he had not earned income by hiring out painters on his books to other painting contractors.
The Statement of Particulars claimed that at the time of the accident the respondent’s weekly wage was approximately $2,480 per week, and that his loss up to 7 December 2020 totalled $277,760. The respondent claimed that he had been paid those wages from his business each week. A number of payslips were tendered in support of that claim. Under cross-examination, the respondent admitted that the payslips had been fabricated by an accountant, at the respondent’s request, to use in an application for a loan. The primary judge found that they were, “not genuine”.
The respondent had produced an invoice book used prior to the accident to support his claim for economic loss. Despite the respondent’s evidence that the invoices were issued consecutively on the dates recorded, the dates of the invoices were inconsistent with the respondent’s evidence.
The respondent received payments from an income protection insurer, Accident and Health International Underwriting (AHI) for two years.
To obtain payments from AHI, the respondent submitted forms entitled “Progressive Claim Form” declaring that since his injury he had been unable, “to attend in any way to [his] business or any occupation.” The respondent also declared that he had not resumed work and had not received any income (other than income protection benefits), through other employment during the disablement period. The respondent’s declarations dated 24 January 2019, 3 December 2019 and 28 August 2020 were in evidence.
The respondent received JobSeeker benefits from Centrelink, apparently commencing after his income protection payments ceased. It must be inferred that the respondent claimed that benefit on the basis that he was not receiving income from employment or any business.
The respondent told Dr Pillemer that he had not worked since the accident. He told Dr Machart that he was a self-employed painter but had not returned to work since the time of the injury.
Despite the respondent’s various claims that he had not worked since the accident, the respondent’s banking records revealed substantial receipts by way of cash deposits, cheque deposits and transfers after the accident. Many of the payments were referable to “painting”, and evidently related to the respondent’s business. For example, there were a number of payments from “Phillip Painting” and payments received for “Bana painting job” and “Paint Works”. A number of receipts were for transactions such as “gift cards” and “Bunnings cards”, which seemed to be commercial transactions of some kind. Some of the receipts contained no description of the payee or the reasons for the payment, including large cash deposits of $7,000, $2,500, $5,750, $3,000, $5,000 and numerous others.
The respondent gave sworn evidence that his only sources of income after the accident were his income protection policy and Centrelink. The respondent’s evidence was that he did not receive any money from anyone in relation to his business after the accident. He later said that he used to save up some money and deposit it into his account, but when it was put to the respondent in cross-examination that he could not be saving money because he did not have anywhere to get money from, he responded, “I don’t know. I don’t remember.”
The respondent was unable to explain the sources of, and reasons for, the payments to him. The total of the unexplained amounts he received between 11 October 2018 and 25 April 2021 was approximately $265,000 from approximately 100 transactions.
On the basis of business receipts, such as payments from Phillip Painting, which continued until May 2019, his Honour found that the respondent had been working and earning income after the collision.
The primary judge was unwilling to accept that the cash deposits were a product of the applicant “working”. Even so, the compelling inference is that they were income from commercial or business transactions.
The primary judge’s reasons did not consider:
(a)the falsity of the respondent’s sworn testimony to the Court that he had not worked since the accident, other than a few days of unpaid work;
(b)the respondent’s false declarations to AHI that he had not worked or earned income since the accident, which amounted to obtaining a financial benefit by deception;
(c)the respondent’s false statements to the medico-legal experts that he had not worked since the accident;
(d)the false representation contained in the respondent’s Statement of Claim and Statement of Particulars that he had been unable to work since the accident; and
(e)the falsity of the respondent’s sworn testimony that his only sources of income after the accident were Centrelink and income protection payments.
In DL v The Queen [2018] HCA 26; 266 CLR 1, the plurality observed at [33], “reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion”. In Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, the Queensland Court of Appeal observed at [34] that the rational resolution of an issue involving the credibility of witnesses will usually require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation. In our respectful opinion, the primary judge’s reasons were deficient in failing to consider a number of relevant and significant aspects of the evidence. That in turn indicates an insufficiently careful approach to assessment of the respondent’s evidence.
In addition, the primary judge did not consider and analyse the extent and scale of the deceptions that the respondent had perpetrated. A careful assessment of the credibility of the respondent’s evidence about the circumstances of the accident required that consideration be given to the number, nature, purpose, magnitude and forums of his deceptions.
The primary judge acknowledged at [54] of his reasons that it was necessary to, “weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case”. His Honour found at [55] that the appellants, “did not garner enough evidence, nor have the overwhelming success on credit that was submitted, to divert me from a finding that the accident occurred as alleged by the plaintiff.” However, that finding was made without his Honour having considered the evidence described in the preceding paragraphs, and without having considered the full extent and scale of the respondent’s deceptive conduct.
An examination of the purpose and calculated nature of the respondent’s deceptive conduct reveals that he was prepared to repeatedly and deliberately lie when it was in his financial interests to do so, including in his evidence to the Court. It was, of course, also in the respondent’s financial interests to have his account of the accident accepted by the Court. Other than the fact of a collision having occurred between the Toyota and the Audi, there was no corroboration of the respondent’s account. In these circumstances, the primary judge was required to carefully scrutinise the respondent’s account of the accident, and to do so by reference to the totality of the evidence of his deceptive conduct, not just some of it.
It is also necessary to examine his Honour’s consideration of the respondent’s credibility in the face of Mr Urquhart’s report.
The primary judge stated at [50] of the reasons that, “[d]riving into the rear of the Audi was unquestionably an act of negligence on the part of the driver of the Toyota.” A literal reading of this passage suggests that his Honour assumed that once it was accepted that the Toyota had run into the back of the Audi, there had to be a finding that the driver of the Toyota was negligent. That cannot be right. Whether or not the respondent was injured as a result of negligent driving would depend on evidence of the circumstances in which the collision took place. However, as the primary judge later observed at [54] that the onus was always on the respondent to prove his case, his Honour should be taken to have accepted that the Toyota running into the back of the Audi would not, of itself, necessarily demonstrate negligence.
The primary judge commenced his examination of the “scepticism” expressed by Mr Urquhart about the respondent’s version of the accident at [51] of the reasons. Several features of his Honour’s reasoning may be noted.
First, his Honour accepted that Mr Urquhart was, “probably correct in his estimates of speed”, which was, “closer to 20 km/h and not more than 40 km/h”, at impact.
Secondly, his Honour found that the respondent was mistaken in his estimate of the speed of the Toyota. The respondent gave sworn evidence that the Toyota, “has come in very fast”. In his interview with the NRMA inspector he was asked, “How fast do you think he was going when he hit you?”, and the respondent answered, “I think it is about 80”. The respondent later repeated, “I think he’s 80…” When asked about this answer in cross-examination, the respondent said, “But I don't know how he's speed. I'm not very sure. I say 80…” In an income protection claim form, the respondent described the Toyota as “very fast”. In a Motor Accident Notification Form, the respondent indicated that when his vehicle was struck, the other vehicle “[was] at high speed”. In the respondent’s interview with the NRMA investigator, he also described the Toyota as “very fast”, and said that the Toyota had “accelerated” into his vehicle. In his evidence, the respondent said that the Toyota had not braked. It may be seen that the respondent had consistently conveyed that the speed of the Toyota at the time of impact was “very fast” and in the vicinity of 80km/h.
Thirdly, his Honour noted that Mr Urquhart’s estimate of speed would be consistent with the lack of rotation of the Audi and the Audi only being moved forward by a metre.
Fourthly, and inconsistently, his Honour considered that the respondent’s estimate that the Audi had been moved forward one metre was inaccurate, saying that to expect accuracy in the circumstances of the accident was unrealistic. This point was directed to Mr Urquhart’s opinion that, the Toyota having struck the left half of the Audi, a clearance of four metres would have been necessary to allow the Toyota to perform the manoeuvre asserted by the respondent of driving around the Audi without having first reversed.
Fifthly, his Honour attributed the inaccuracy of the respondent’s estimates of speed and the distance the Audi was propelled forward to the stress of being, “harassed by the Toyota”, and being, “confronted with the marauding vehicle”. His Honour also noted that the respondent did not have the benefit of observing the Toyota’s speed, “over any particular distance”, that the road was dark and that the respondent may have been unfamiliar with the area.
Sixthly, his Honour’s analysis commenced by assuming the truthfulness of the respondent’s evidence to the effect that that he was “harassed by the Toyota”, that he was “confronted with the marauding vehicle”, and that a “haphazard driving style… had been demonstrated by the Toyota in harassing the [respondent].” The truth of the evidence was, however, very much in issue.
There are, with respect, several difficulties with accepting the reasoning of the primary judge. The respondent’s consistent representations to insurers after the accident and in his evidence were that the Toyota was travelling “very fast” and somewhere in the vicinity of 80 km/h at the time of impact. The primary judge considered that the respondent could not be expected to act “rationally” in the circumstances, by which his Honour seemed to mean that the respondent could not be expected to give any accurate estimate of speed. However, that was a supposition unsupported by evidence. While the respondent gave evidence that he was “shaken”, “afraid” and “shocked”, he did not suggest that this may have caused him to be mistaken about his estimates of speed (and he apparently had the mental agility and physical dexterity to pick up his phone and photograph the Toyota as it was fleeing). To the contrary, his estimates of speed were consistently given and were never claimed to be inaccurate on account of the stressful circumstances. It is apparent that the respondent’s intention was to convey that the impact had occurred at high speed.
There was a very substantial difference between what his Honour found to be the speed at impact (“closer to 20 km/h and not more than 40 km/h”) and the respondent’s estimate of about 80 km/h or “very fast”. There had to be consideration of whether such a difference was capable of being explained by mere error, or whether the respondent’s estimate was exaggerated or false. That was particularly so because the respondent’s claim of a high speed collision gave support to his claim that he had sustained injuries so serious that he had been unable to return to work. The reasons contain no suggestion that this was considered. In the circumstances, the necessity to carefully assess the credibility of the respondent’s evidence required his Honour to examine whether the respondent’s evidence as to speed was dishonest.
A further difficulty is that the primary judge’s analysis began by assuming the truthfulness of the respondent’s evidence to the effect that he had been, “harassed by the Toyota”, and that he was, “confronted with the marauding vehicle”. His Honour then deployed that assumed truth as an explanation for why the appellants’ estimate of high speed was inaccurate. However, the respondent’s evidence of the Toyota travelling “very fast” was integral to the impression he sought to give of a driver behaving in an aggressive and intimidating manner, causing the respondent to pull over to the side of the road. His Honour ought to have considered whether the respondent’s inaccurate evidence of high speed cast doubt upon whether there was ever any such aggressive and intimidating driving. A collision at the relatively low speed found by his Honour hardly seems consistent with his Honour’s description of the respondent being “harassed” by a “marauding vehicle”.
Further, his Honour did not grapple with how the relatively low speed of the Toyota could fit with objective evidence that the point of impact was towards the passenger side of the rear of the Audi. The respondent’s evidence was that he had brought his Audi to a stop at the left side of the road. A photograph taken after the accident shows the car on the left of the road straddling the white line separating the roadway from the bicycle lane facing forward. The respondent’s evidence was the impact did not cause the car to rotate. On the respondent’s account, the Toyota must have moved left, almost entirely into the bicycle lane, and either deliberately rammed the Audi, or tried to pass the Audi by driving past its passenger side. His Honour found that, while the position of the hit was “unusual”, it was, “not necessarily inconsistent with the haphazard driving style demonstrated by the Toyota in harassing the [respondent]”. However, his Honour did not assess how an impact speed of closer to 20 km/h and not more than 40 km/h (instead of the respondent’s claim of about 80 km/h), could gel with a finding of “harassment” resulting in the “unusual” point of impact.
The respondent’s unequivocal statement to the NRMA investigator was that the collision had moved his Audi forward about one metre and that the Toyota had then driven past without first reversing. Mr Urquhart’s evidence was that to push the Audi forward by one metre, the speed of the Toyota at impact would have had to be about 26 km/h. In his evidence, the respondent said that his car may have been pushed forward two metres. Mr Urquhart’s view was that such a distance would have required an impact speed of about 36 km/h. Mr Urquhart’s opinion was that to push the Audi forward by four metres, the Toyota’s speed would have had to be about 51 km/h. Mr Urquhart’s opinion was that, given the offset impact, the Toyota would have required a clearance of four metres to drive past the Audi on the right. Mr Urquhart’s evidence was not challenged.
As has been mentioned, His Honour accepted that the speed of the Toyota at impact was, “closer to 20 km/h and not more than 40 km/h”. On Mr Urquhart’s uncontested evidence, at such a speed, there could not have been the clearance of four metres required for the Toyota to perform the manoeuvre described by the respondent. His Honour may be assumed to have given this evidence no weight by stating at [52] that Mr Urquhart had, “delved into a mathematical examination of speeds, times and distances all of which are incapable of creating the assorted doubts reached by Mr Urquhart” (notwithstanding that his Honour had, in fact, already accepted substantial parts of Mr Urquhart’s evidence). Even though the respondent consented to Mr Urquhart’s report being admitted into evidence without requiring him for cross-examination, his Honour was not required to accept that evidence: see Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [355] (Callinan J). Nevertheless, his Honour ought to have explained why he rejected Mr Urquhart’s unchallenged evidence to the effect that the manoeuvre described by the respondent could not have been performed. To merely assert that Mr Urquhart’s evidence was “incapable” of acceptance provided no explanation for its rejection.
In our respectful opinion, once the primary judge accepted that the impact speed was, “closer to 20 km/h and not more than 40 km/h”, there was no basis for rejecting Mr Urquhart’s opinion that the Audi would not have been pushed the distance of four metres that would, according to the respondent’s evidence, have allowed the Toyota to steer past the Audi without having reversed first.
The primary judge made a finding at [55] that, “I accept, on the whole of the evidence, that the accident occurred as alleged by the [respondent].” However, the only explanation given for that finding was, “I… formed a much more favourable view of the [respondent’s] evidence in respect of the accident.” The approach of the primary judge seemed to largely compartmentalise the findings concerning the dishonesty of the respondent in relation to issues of quantum, and gave inadequate attention to their effect upon the respondent’s credibility concerning the accident. While his Honour acknowledged the success of the appellants’ attack on the respondent’s credit in respect of economic loss and that the effect on his credit “could be” transferred to his evidence on the accident, the reasons reveal no analysis of whether the discrepancies in the respondent’s evidence as to the accident could also be explained by dishonesty. Further, his Honour failed to consider the totality of the respondent’s dishonest conduct. In addition, there are difficulties in accepting his Honour’s assessment of the respondent’s credibility in light of Mr Urquhart’s unchallenged evidence. In our respectful opinion, his Honour’s reasoning failed to reveal a sufficiently cautious, careful and comprehensive assessment of the credibility of the respondent’s account of the accident based on the whole of the evidence. That requires that the judgment of the primary judge be set aside.
A question remains as to whether a retrial should be ordered or whether the proceeding should be dismissed. As to that question, we respectfully consider that the primary judge erred in finding at [55] that, “the accident occurred as alleged by the [respondent].” While it was established that a collision between the Toyota and the Audi had occurred, there was no independent evidence as to the circumstances of the collision. The respondent’s allegation of negligence depended entirely on the credibility of his evidence. The appellants demonstrated that the speed of the Toyota at the time of impact was probably in the vicinity of 20 km/h, but not more than 40 km/h. The respondent’s estimate of “very fast” and “80km/h” was grossly exaggerated. The relatively low speed of the collision was quite inconsistent with the respondent’s graphic description of aggressive and intimidating driving. That leaves the unusual point of impact at the left half of the Audi unexplained. The relatively low speed also made the respondent’s evidence that the Toyota manoeuvred around the Audi without first reversing quite implausible.
In addition, the appellants convincingly demonstrated that the respondent was prepared to repeatedly and deliberately lie whenever it was in his financial interests to do so. He gave false evidence that he had not worked as a painter since the accident (other than for four days). He falsely claimed that he had not operated his painting business, or earned other income. He used fabricated pay slips to exaggerate the level of his pre-accident income. As it was also in the respondent’s financial interests to have his evidence about the accident accepted and there were no other witnesses, that evidence had to be treated with considerable caution.
When the whole of the evidence is weighed, his Honour’s finding that the accident occurred as alleged by the respondent can be described as contrary to the compelling inferences. In our respectful opinion, his Honour ought to have concluded that the respondent had failed to prove, on the balance of probabilities, that the accident was caused, or contributed to, by the negligence of the driver of the Toyota.
In reaching this conclusion, we are mindful of the advantages enjoyed by the primary judge in seeing and hearing the respondent’s evidence. His Honour’s formation of a, “favourable view of the [the respondent’s] evidence in respect of the accident”, was unexplained, but it can be assumed that demeanour played some part: cf. Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 (McHugh J). The respondent’s evidence was given through an interpreter. That may have created an added significance to any non-verbal cues that were available to the primary judge. On the other hand, his Honour did not have the advantage of detecting nuances of intonation, emphasis and modulation that may attend the hearing of evidence given in a familiar language. We are mindful that his Honour had the benefit of seeing the whole of the evidence as it developed, and have, therefore, read the whole of the transcript. The benefit that his Honour had of seeing and hearing the respondent’s evidence cannot, in our respectful opinion, overcome our assessment of the respondent’s evidence as generally implausible.
There is objective evidence that the respondent has some pathology in his lower back and right shoulder. However, the evidence of Dr Machart, who was not required for cross-examination, was that this pathology could be non-traumatic. Dr Pillemer’s evidence was that a rotator cuff injury was consistent with working as a painter. The evidence of pathology does not assist the respondent to establish that he was injured as a consequence of the accident.
Our obligation is to give the judgment which we consider ought to have been given in the first instance, while giving due respect and weight to the findings of the primary judge. In our respectful opinion, the proceeding ought to have been dismissed.
Accordingly, we will allow the appeal, set aside the orders of the primary judge, and dismiss the proceeding with costs.
| I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson and his Honour Justice Rangiah Associate: Andrew Ray Date: 24 June 2022 |
McWILLIAM AJ:
I have had the benefit of reading the judgment of Loukas-Karlsson and Rangiah JJ in draft form. I agree with their Honours’ conclusion that the appellants’ negligence (the defendants at first instance) was not established on the evidence. As a result, the orders made in Kilaniv Aluabaid [2021] ACTSC 90 (primary judgment) awarding judgment for the plaintiff (the respondent on appeal) in the sum of $181,500 plus costs must be set aside. I will express my own reasons for reaching that conclusion, set out below.
Issues on the appeal
The Notice of Appeal contains nine detailed and overlapping grounds. They may be summarised as follows:
(i)Complaints about the primary judge’s findings in respect of the expert report (and evidence) of Mr Glen Urquhart, Collision Reconstructionist and Forensic Engineer.
(ii)Error in finding that the opinion of Mr Urquhart was of no consequence in determining whether the respondent had discharged his evidentiary and legal onus in respect of his claim in negligence.
(iii)Error in finding for the respondent as to liability in the face of certain unchallenged evidence by Mr Urquhart and the primary judge’s acceptance that Mr Urquhart’s estimate of the speed of the appellants’ vehicle was “probably correct”.
(iv)Error in failing to have regard to the whole of the evidence, including the report of Mr Urquhart, in finding that the accident occurred as alleged by the respondent.
(v)Error in finding for the respondent as to liability in the absence of findings as to the circumstances leading to the respondent being stationary on the side of the road; the speed and position of the appellants’ vehicle; and the circumstances in which the two vehicles came into collision.
(vi)Error in failing to consider the consequences on the respondent’s credit in finding that the respondent was working after the accident, in circumstances where such a finding was contrary to the respondent’s:
(a)Signed declarations to the income protection insurer;
(b)Histories provided to the medicolegal specialists;
(c)Instructions provided to his solicitors upon which answers to particulars and pleadings were drafted; and
(d)Sworn evidence given to the Court.
(vii)Error in finding that the respondent’s credit was not sufficiently impugned so as to be relevant in the determination of whether the respondent had discharged his evidentiary and legal onus with respect to his claim in negligence.
(viii)Error in declining to draw an inference from the failure of the respondent to call a witness (Mr Sadaq) that the evidence would not have assisted the respondent’s case, in circumstances where:
(a)The respondent had his contact details;
(b)His evidence would have elucidated the respondent’s case as to his reason for travelling in the early hours of the morning when the accident occurred;
(c)He was therefore a witness who would be expected to have been called; and
(d)His absence was unexplained.
(ix)Error in assessing past economic loss in the sum of $25,000, given the primary judge’s finding that the respondent had worked since the accident, and where no findings were made as to the respondent’s earnings before the accident, or actual earnings and return to work after the accident.
It will be readily apparent from the above grounds that there were two key issues on the appeal. The first was the primary judge’s treatment of the expert evidence of Mr Urquhart, whose expertise in accident reconstruction was part of the appellants’ case that the accident did not occur in the manner the respondent claimed. The second was the primary judge’s findings concerning the respondent’s credit, which were in part affected by the findings regarding Mr Urquhart’s expert report.
In argument, the appellants focused on whether the respondent had discharged his legal and evidentiary onus, which is the crux of the 7th ground listed above. In doing so, the submissions traversed the other grounds of appeal in support of the critical question of the respondent’s credit as to how the accident occurred. In what follows, determination of the issue of whether the respondent discharged his onus has been dispositive of the appeal.
Applicable principles
The appeal is governed by s 37E of the Supreme Court Act 1933 (ACT), in that it is in the nature of a rehearing, albeit error must still be shown: see The Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5] and the authorities cited therein.
The approach to be taken on such an appeal involves reviewing the evidence to determine whether the trial judge erred, whether in fact or law. That task has been set out by Bell, Gageler, Nettle and Edelman JJ (with whom Kiefel CJ agreed) in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55], as follows (footnotes omitted):
A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". …
The references cited in the footnotes throughout that passage draw together the statements articulated in cases such as Fox v Percy [2003] HCA 22; 214 CLR 118, Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679, Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392, Warren v Coombes (1979) 142 CLR 531 and Thorne v Kennedy [2017] HCA 49; 263 CLR 85.
Did the primary judge err in finding that the respondent had discharged his legal and evidentiary onus?
The reasoning of the primary judge is found at [52]-[56] of the primary judgment (with the critical finding at [55] emphasised):
52. Overall, Mr Urquhart’s approach leaves the scene of an apparently obvious rear end collision and delves into a mathematical examination of speeds, times and distances, all of which are speculative and incapable of creating the assorted doubts reached by Mr Urquhart.
53. Despite hovering on a suggestion of fraud, the allegation was never actually put. Rather a concentrated credit attack was said to render the plaintiff’s evidence unbelievable. The defendants suggested there was a concatenation of facts which simply could not have occurred, thus rendering the plaintiff’s version incapable of acceptance.
54. I accept that the onus was always on the plaintiff to prove his case. The defendants relied heavily on the decision of the New South Wales Court of Appeal in Nguyen v Tran [2018] NSWCA 215. This case emphasises that a court must “weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case” (at [54]). It also says that, relevant to this case, the defendants do not have to prove that the accident didn’t happen as alleged by the plaintiff.
55. But the accident unquestionably occurred, there are photos of the scene and of the departing Toyota and there is the corroboration provided by the plaintiff getting in touch with the police. The plaintiff certainly attempted to establish a significant economic loss claim but it was not substantiated. However the defendants did not garner enough evidence, nor have the overwhelming success on credit that was submitted, to divert me from a finding that the accident occurred as alleged by the plaintiff. This is not a shifting of the onus. This is a finding that I accept, on the whole of the evidence, that the accident occurred as alleged by the plaintiff.
56. Accordingly there will be a verdict for the plaintiff.
The primary judge had earlier set out how the plaintiff alleged the accident occurred, at [34]-[35]:
34. The plaintiff noticed a vehicle that was driving very fast and closely behind him and had its lights on high beam. He could not immediately pull over but did so when an opportunity arose. He brought his car to a stop in a position partly encompassing a bicycle lane. This can be seen in the photograph [in evidence].
35. Instead of overtaking him, the other vehicle collided with his rear, causing the damage that can be seen from [the photos in evidence].
The primary judge’s finding with regard to the respondent’s credit is to be found at [50] of the primary judgment:
50. Before examining the assorted points of criticism levelled at the plaintiff’s case I make the following observations:
(a) The plaintiff’s case as pleaded is simple. It says no more than that the plaintiff was driving towards Red Hill on Mugga Lane when the Toyota collided with the rear of his car. It continues that after the collision the Toyota left the scene. The particulars of negligence are what might be described as ‘standard’ and include failing to keep a proper lookout and failing to pay proper care and attention whilst driving. Driving into the rear of the Audi was unquestionably an act of negligence on the part of the driver of the Toyota.
(b) Notwithstanding the defendants’ success in attacking the plaintiff’s credit in respect of his economic loss, and accepting that the effect on his credit could be ‘transferred’ to his evidence on the accident, I nevertheless formed a much more favourable view of the plaintiff’s evidence in respect of the accident.
A preliminary factual question
There was a factual discrepancy in the accounts of the accident given by the plaintiff as to whether his car was stopped or moving at the time the collision occurred. The differences are seen in what was summarised by the primary judge at [50(a)] of the primary judgment, and the version of events given by the plaintiff as recorded by the primary judge at [34]-[35] of the primary judgment.
The pleaded case was that the Toyota collided with the rear of the plaintiff’s car while he was driving. The Statement of Claim contains the following:
The Plaintiff was travelling towards [R]ed Hill on Mugga lane. As the Plaintiff approached Hindmarsh Drive, the First Defendant collided with the rear of the Plaintiff’s car.
The plaintiff’s evidence as summarised by the primary judge was that he brought the car to a complete stop before it was hit from behind.
There were inconsistent versions of events given at various stages before hearing. The plaintiff immediately reported the collision to the police. The AFP Internal Crash Report and Case Summary includes the following:
V1 travelling north on Mugga Lane, Redhill. As V1 approached intersection with Hindmarsh Drive, V2 collided with the rear of V1.
The plaintiff’s vehicle was recorded as “slowing” in the AFP crash report, not stopped.
The reasons of Loukas-Karlsson and Rangiah JJ (at [42] and [43] above) refer to what was reported in a claim form to the income protection insurer and what was recorded in a Motor Accident Notification Form. Again, both of those versions of events were to the effect that the plaintiff’s vehicle was moving when it was hit from behind. The claim form is in the following terms (emphasis added):
I was driving on a speed limit and someone behind me drove very fast. I was trying to give way to this driver by pulling over on the side, when I was pulling over on the side, he hit my car from behind & ran over fastly”.
Similarly, the Motor Accident Notification form states:
I was driving on speed limit and someone behind me was going very fast, I tried to give him way by bulling [sic] over, but before I bulled [sic] on the side he hit me and run away.
However, after those initial reports, the plaintiff’s version of events appears to have changed. In the plaintiff’s interview with an insurance investigator some months later, he said that he was stopped for three seconds before the impact. The case was opened on the basis that the plaintiff stopped for a short period before the collision. In his evidence in chief, which was given through an interpreter, the plaintiff said:
(Through interpreter) There is the place for a car to park on the side of the road. (Witness) Then after, when I stop, I just - he is hit me from my back. From my - back my car.
You said when you stopped - - -?---When I stop - yes, when I stop in this - I see some space to stop. Straight away he is come very fast and hit me from back.
Under cross-examination at the hearing, the plaintiff agreed his vehicle was stationary when the collision occurred. However, even having just agreed his vehicle was stopped, the plaintiff went on to state, while still under cross-examination, “I slowed down and the car behind me kept going and hit me”.
The primary judge accepted that the accident occurred “as alleged”, without dealing with the above discrepancy. I have taken the primary judge’s finding to mean an acceptance of the plaintiff’s vehicle being stationary, as that was how the case was opened and that was how the primary judge summarised the plaintiff’s version of events, even though that was not what was formally alleged in the pleading and conflicted with the plaintiff’s contemporaneous evidence given to police and on claim forms.
The report of Mr Urquhart dated 31 March 2021 (Urqhuart Report)
That has consequences for how to view the Urquhart Report, which was expressly based on the assumption that the plaintiff’s vehicle was stationary. Under the heading “Conclusions”, the report includes the following:
…
3. Accepting the Plaintiff’s evidence that he was stopped at impact, it is likely the insured vehicle was travelling at a speed between 20 and 40 kph at impact, and probably at the lower end of the range …
…
7. There are a number of issues with respect to the Plaintiff’s version of events. Primarily, the physical evidence demonstrates that the Defendant’s vehicle could have come into a near-side offset collision at a low speed. This appears to be inconsistent with the Plaintiff’s version of events with respect to speed and impact configuration. Other inconsistences have also been outlined. …
Had there been a finding that the plaintiff’s vehicle was moving (consistent with the pleading and the plaintiff’s contemporaneous accounts of the accident), the underlying factual foundation for the calculations made in the report would have been missing, and the opinion set out above would have carried little weight, regardless of the criticisms made by the primary judge.
However, the case was conducted at hearing on the basis that the plaintiff was stopped. The primary judge impliedly accepted that fact without any issue being taken on appeal. The criticisms of the Urquhart Report made by the primary judge, and the reasons that evidence was not considered persuasive at first instance, have been reviewed on that basis.
The concerns the primary judge had with the Urquhart Report were explained at [40] of the primary judgment and following paragraphs. They included that the conclusions in the report were reached on the basis of surmise and speculation, and that the report emphasised “exactitude to defeat estimates given by the plaintiff of such matters as speed and the distance that the plaintiff’s vehicle was pushed forward”.
There was a further criticism made by the primary judge which concerned information considered in the Urquhart Report which had been obtained from the NRMA. That included an opinion from an NRMA consultant in organised fraud investigations, who had apparently inspected both vehicles. The view of that investigator was “[a]t this point, the forensic evidence indicates that the Audi and Toyota have impacted each other in a manner that is consistent with a collision between the two vehicles and consistent with the collision circumstances”.
The Urquhart Report contained a note that the NRMA report extract was “of limited value in assessing the circumstances of this case”, because it was “missing key information about the Toyota’s condition and there were no accompanying vehicle inspection photographs.” The concern in the Urquhart Report that no photographs were available for the author to independently assess the location or extent of damage to the Toyota was later repeated.
The primary judge was critical (at [44] of the primary judgment) of Mr Urquhart’s note as having “the hallmarks of ignoring useful information because it does not agree with the author’s opinion”. His Honour concluded at [52] of the primary judgment (which is included in the extract above in these reasons at [139]), that Mr Urquhart’s examination of the circumstances of the collision was incapable of creating the doubts expressed in the report.
That view of Mr Urquhart’s report is a troubling finding for a number of reasons. First, it was incumbent upon Mr Urquhart as an expert to furnish the primary judge as the fact finder with a reasoning process sufficient to disclose how the expert formed the view he did, which includes explaining the expertise on which the opinion was substantially based: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [35]-[37] per French CJ, Gummow Hayne Crennen Kiefel and Bell JJ, [93] and [129] per Heydon J. The mathematics were the intellectual basis for the opinion as to how far the car would have been pushed on the respondent’s version of events and were therefore a necessary part of the report in this case: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85].
Second, given the assumption made by the expert was found as a fact by the primary judge, the calculations made in that report supported the view that the manoeuvre described by the plaintiff – that the vehicle that hit him drove off to the right of his vehicle without first reversing – could not have been performed. That is, the specialist expertise supported the opinion given.
In that regard, the appellants’ submissions (as I have understood and paraphrased them) point to an inconsistency in the primary judge’s reasoning at [51] of the primary judgment when considering the scepticism about the plaintiff’s version of events. The paragraph is set out in full in the reasons of Loukas-Karlsson and Rangiah JJ, but the focus here is on the following extract:
(b) Mr Urquhart is probably correct in his estimates of speed. But as I have said the plaintiff’s appreciation of speed would have been significantly impaired by the circumstances in which he found himself. And if Mr Urquhart is correct about the speed of the Toyota then the movement of the Audi by only about a metre and the lack of rotation are consistent.
(c) The same applies to the turning circle issue. Mr Urquhart’s approach is dependent on the accuracy of the plaintiff’s estimate of how far he moved forward. To expect, in the circumstances of this accident, any such accuracy is unrealistic and indicative, as I’ve said above, of an approach which places technical exactitude above realism.
If the plaintiff’s car was hit at 20-40 km/h, then the expert evidence demonstrated a movement forward by about a metre and a lack of rotation. The consequence of that was that the Toyota would not have been able to move from the left-hand side of the plaintiff’s car around to overtake it on the right-hand side without reversing.
If the plaintiff’s car was hit at a greater speed, then again on the expert evidence, the car would have moved forward to a greater extent and potentially rotated, which was also inconsistent with what the plaintiff said and with the photographic evidence of the plaintiff’s car and location after the collision.
Accepting that a plaintiff may not be able to give realistic estimations of speed and of distance, there remained real questions as to how to match up what was known about the collision with the plaintiff’s version of events.
Third, the primary judge did accept substantial parts of Mr Urquhart’s evidence (such as the speed at the point of impact), which were themselves based on mathematical calculations the primary judge had dismissed. While it is true that some inferences may have involved a degree of speculation, the inferences were nevertheless made with proper foundation. For example, the damage to the plaintiff’s vehicle was clear – the impact was to the off-side rear of the car, which was located on the left-hand side of the road in a bicycle lane. The inference drawn by Mr Urquhart was that:
The impact configuration would require the driver of the Toyota to have attempted to under-take the Plaintiff’s vehicle, into the bicycle lane and between the Audi and the kerb. If it is accepted that the driver was intending to pass the Plaintiff’s vehicle, this must be considered highly unusual and improbable.
Given the location of where the Audi was hit from behind, it is difficult to think of any other inference than that which was drawn by the expert. It is highly unusual for a vehicle to “undertake” another car (pass on the left) in a bicycle lane, not only because it is not a lawful manner in which to drive, but also because the more convenient course would surely have been to pass the plaintiff’s vehicle on the road rather than straddling the bicycle lane and street curb.
Fourth, the primary judge, as the finder of fact, was not bound to accept the evidence of an expert who was not called for cross-examination: Brodie v Singleton Shire Council (2001) 206 CLR 512 at [355] (per Callinan J). However, it was important to bear that consequence in mind when assessing the evidence. The primary judge’s caution to himself (at [40] of the primary judgment) that it would be unfair if his Honour’s comments on the Urquhart Report were overly critical given Mr Urquhart was not cross-examined are not consistent with the criticisms then made in the judgment.
Specifically, Mr Urquhart had not been given the opportunity of explaining his comment of the limited value of the NRMA report nor to explain the key information that was missing regarding the condition of the Toyota. It is clear that what the author wanted to be able to do was to see the damage to the Toyota for himself. The fact was, there were no photographs of the Toyota’s front bull bar. The only photograph of the Toyota available to Mr Urquhart was that taken by the plaintiff after the collision, when the driver left the scene, passing the plaintiff’s vehicle on the right-hand side. That did not show the state of the front of the Toyota, namely the bull bar that had hit the plaintiff’s car.
In that regard, the description of the Toyota from the NRMA consultant’s description, (which was included in the Urguhart Report and set out at [41] of the primary judgment) was obviously limited. The only information provided was: “[t]here are vertical scratches to the front bull bar of the Toyota” and “[t]he damage to the front of the Toyota is biased towards the Driver’s side of the vehicle”. No greater detail was given as to the nature of the scratches (how many, how long, how deep and so forth), or their location, other than “a bias” towards the driver side. The NRMA report itself also indicated that the inspector had been unable to access data for the airbag module because he did not have the car key. In those circumstances, it is entirely understandable why an expert may be concerned to caveat his opinion as to the limited value of that information from the NRMA in “assessing the circumstances of this case”.
Contrary to how the primary judge viewed Mr Urquhart’s report, I consider it was reasonable for an expert to point out the limitations of the NRMA information for the task that he was required to perform.
For these reasons, I consider there was error in the treatment of the expert evidence, and it ought not to have been dismissed by the primary judge.
The plaintiff’s credit as to the manner in which the accident occurred
That conclusion then affects the primary judge’s reasoning with regard to the plaintiff’s credit. In that regard, I agree with what has been said by Loukas-Karlsson and Rangiah JJ at [103] of their Honours’ reasons, to the effect that the reasons at first instance do not deal specifically with the false testimony given by the plaintiff to the Court, false declarations made about income, and false statements made to medico-legal experts.
As stated in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] (per Campbell JA, Allsop P and McColl JA agreeing):
[116] A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ippa JA, Hodgson JA and Campbell JA agreeing).
Added to this is the concern I have earlier expressed about the plaintiff’s fluctuating evidence as to whether his car was moving when it was hit by the Toyota or had been stopped for up to three seconds before being hit. That inconsistency on such a fundamental point is of real significance to the plaintiff’s credit or at least reliability in establishing how the accident occurred, and specifically in establishing that it occurred in a manner demonstrative of negligence by the defendants.
When the plaintiff’s inconsistent evidence is placed alongside the expert opinion that the accident could not have occurred in the manner alleged by the plaintiff, and the false statements and their consequences are carefully assessed (in the manner described by Loukas-Karlsson and Rangiah JJ at [106]), the result is an unreliable account, that was demonstrably implausible by reference to expert evidence, in the context of serious adverse credit findings about matters of importance in the proceedings.
That combination has led me to reach the conclusion that the primary judge’s finding at [55] that the accident occurred as alleged by the plaintiff was contrary to compelling inferences. The finding that ought to have been made was that the plaintiff had failed to prove, on the balance of probabilities, that the accident was caused (in the sense of being a material contributing factor) by the negligence of the driver of the Toyota.
Conclusion and proposed orders
The appellants have succeeded in establishing error. As the nature of the error is such as to be determinative of the proceedings at first instance, it is unnecessary to remit the matter.
Accordingly, the orders of the Court I would propose are as follows:
1.The appeal is allowed.
2.The orders of the primary judge made on 14 May 2021 are set aside and in lieu thereof, the following orders are made:
(a)Judgment for the defendants.
(b)The plaintiff is to pay the defendants’ costs.
3.The respondent is to pay the appellants’ costs of the appeal.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Aislinn Grimley Date: 24 June 2022 |
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