Bates v Certain Underwriters at Lloyds
[2014] VCC 304
•9 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised |
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-12-03771
| TONY BATES | Plaintiff |
| V | |
| CERTAIN UNDERWRITERS AT LLOYDS SUBSCRIBING TO CONTRACT NO. TRI0000000946MPC | Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 11, 12, 13, 14, 17, 18, 19, 20 and 24 March 2014 | |
| DATE OF JUDGMENT: | 9 April 2014 | |
| CASE MAY BE CITED AS: | Bates v Certain Underwriters at Lloyds | |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 304 | |
REASONS FOR JUDGMENT
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Catchwords: Insurance claim – whether plaintiff established claim that vehicle sideswiped while left unattended outside the plaintiff’s house – whether quantum established
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Langmead SC Mr M. Black | Nick Logan & Co |
| For the Defendant | Mr P. Riordan SC Mr M. Purvis | Hall & Wilcox |
HER HONOUR:
In this matter, the plaintiff claims under an insurance policy for damage suffered by his BMW M6 Coupe (VTB-024) when it was sideswiped by an unidentified vehicle whilst the car was parked outside his house at 105 Woodland Street, Essendon in the late afternoon on 28 September 2011.
The defendant has made admissions to a number of formal matters.[1]
[1] See Amended defence to further amended statement of claim dated 3 December 2012 paragraphs 1,2, 3 and 6.
However, the defendant denies that the claim was caused by an event covered by the policy because it rejects the claim that the damage occurred in the manner alleged by the plaintiff.
It also alleged that the claim was fraudulent and that it was entitled to reject the claim under s56 of the Insurance Contracts Act 1984 (Cth). Further that the plaintiff failed to act with utmost good faith.
An earlier claim that the defendant was entitled to reject the claim because the vehicle was in an unsafe or un-roadworthy condition was abandoned at trial.
The plaintiff accepted that there was one central fact in dispute in the case, namely, whether or not the vehicle was sideswiped while left unattended outside the plaintiff’s house. The plaintiff further accepted he bore the onus of proving this fact.[2]
[2] Plaintiff’s outline of closing submissions dated 21 March 2014, paragraph 14.
Both parties also accepted that once this issue was resolved, it was unnecessary to consider the fraud/ bad faith allegations, which were effectively superfluous.
The defendant further rejected any suggestion that it bore the onus in proving how the damage occurred (citing the New South Wales Court of Appeal in Hammoud Brothers Pty Ltd v Insurance Australia Ltd[3]). However, it did propose an alternative hypothesis which was that the plaintiff’s vehicle was in fact damaged as a result of a collision with a solid object of consistent height such as a fence or a wall while the vehicle was in motion.[4] In closing it was submitted, more simply, that the vehicle lost control and impacted something at some point.
[3] [2004] NSWCA 366.
[4] Amended defence to further amended statement of claim dated 3 December 2012, paragraph 12(j).
However, the defendant accepted that if the alleged event occurred as the plaintiff claimed it would be covered under the terms of the policy and he would succeed.[5]
[5] Defendant’s final submissions dated 21 March 2014, paragraphs 2 and 12
Accordingly, the primary issue in the case was a factual one; namely, whether or not the vehicle was sideswiped while left unattended outside the plaintiff’s house as the plaintiff claimed.
In considering this primary issue, the following areas warranted consideration:
· The plaintiff’s evidence including his account of the accident;
· The evidence of the other lay witnesses for the plaintiff;
· The defendant’s suggestion that the plaintiff’s conduct in relation to certain interlocutory applications showed a “consciousness of guilt”;
· The expert evidence, particularly as to the physical damage to the car, and technical evidence as to whether the ignition was on or off.
There was a further minor issue as to quantum. In particular, although the vehicle was a “write off”, the plaintiff accepted that an amount of $38,170 should be deducted given the vehicle was sold as salvage for this price. The defendant however did not accept that this was an appropriate salvage value. Accordingly it will also be necessary to consider the appropriate deduction for salvage value if liability is established.
Before dealing with these issues a short background is necessary.
Background
Mr Bates was a freight broker and transport consultant and the sole director and shareholder of the business, Alternative Freight Services, which was a successful business and employed 30 people.
Although he had an interest in car racing, the BMW was his “everyday” car which he described as his “pride and joy”. He had paid over $200,000 for it and detailed it at least once a week. It was subject to a lease arrangement which was due to expire in June 2013.
The defendant is the sole underwriter of the relevant policy of insurance relating to the BMW.
The policy provided that in the event of a “total loss” the policy would pay the “Sum Insured” which was given as $157,000 in the Schedule to the policy. Section 1 of the policy stated that the insurer covered “accidental damage” to the vehicle.
The alleged incident in this case occurred on 28 September 2011 and will be described further, below.
On 29 September 2011 a claim was lodged with the defendant via Mr Bates’ broker.
The form was filled in by Mr Bates’ personal assistant, but with information provided by Mr Bates. It contained the following:
“VTB024 was parked @ 105 Woodland Street for approximately 20 mins. Vehicle has been hit whilst parked/unattended. No details left for offending vehicle.”
On 3 October 2011 the vehicle was assessed by Mr Harry Planko at Gippsland & Mountain Districts Assessing Pty Ltd, a qualified panel beater, on behalf of the defendant. He found:
“Given the severity of the impact damage I would expect that the entire body shell has been compromised dimensionally and the drive train geometry will almost certainly be affected given the vehicle was parked and likely to have been moved consequent to the impact which will have transferred damage accordingly.”
He described the vehicle as a “total loss” in his vehicle assessment report.
On 27 October and 18 November 2011, Mr Michael Edgerton, from Forensic Collision Investigations, also examined the vehicle. He subsequently produced a report concluding that the damage to the vehicle was inconsistent with the collision as described by Mr Bates.
Mr Bates subsequently underwent interviews with the insurer on 29 November 2011 and 22 December 2011. In the second interview various allegations were put to him further to the report of Mr Edgerton. His immediate response was that this was “an absolute load of garbage” and that he would contest this in the courts.[6]
[6] Exhibit 1, record of interview of 22 December 2011 appearing at defendant court book pages 321 to 339 (particularly answers to questions 90, 95 and 97 appearing at pages 336 to 337).
On 31 January 2012 the defendant denied indemnity to Mr Bates under the policy on the basis that his claim was fraudulent.[7]
[7] Exhibit J, correspondence from Proclaim dated 31 January 2012 appearing at plaintiff court book paged 40 to 41.
On 6 August 2012 Mr Bates issued this proceeding.
Witnesses
The lay witnesses called for the plaintiff were Mr Bates, Ms White (the plaintiff’s sister), Mr Harrison (a tow truck driver), and Mr Buzadzic (a close friend of the plaintiff and the proprietor of a panel beating business). The plaintiff also called expert witnesses Dr Richardson and Mr Lee.
The defendant called three expert witnesses: Mr Edgerton, Mr Tanti, and Mr Planko. The defendant also called a Mr Stokes who gave evidence related to the circumstances surrounding the “consciousness of guilt” allegation.
Given the significance of the plaintiff’s evidence it will be given some separate consideration before moving to the other lay witnesses for the plaintiff.
LAY WITNESSES
Plaintiff’s account of events of 28 September 2011
The evidence of Mr Bates was that he went to the office in the morning and went out on the road visiting customers throughout the day. He returned home later in the afternoon because he knew his mother was visiting and wanted to catch her before it got dark.
His fiancée of the time, Kyla, was also home; having only been a few days home from the hospital after recovering from a Caesarean from having their son (born on 21 September). She was bedridden in one of the bedrooms downstairs at the back of the house.
However he is in the process of separation with this fiancée Kyla such that they are not on “talking terms”.
It was very dark and teeming down rain that day (“torrential rain”) both when he arrived home and when his mother drove away a little later. However, he had to park in the street because his mother had parked in the driveway (though he had asked her not to).
Woodland Street is a busy two way divided roadway with two lanes in each direction with a marked parking lane between the traffic lanes and the respective northern and southern kerbs.[8]
[8] Exhibit 23, supplementary report of Mr Edgerton dated 18 November 2011 at defendant court book page 523.
The vehicle was locked with the ignition turned off and undamaged. Mr Bates claimed that the vehicle had never been damaged between when he purchased it new and when he discovered it outside his house damaged on 28 September.
All three (his mother, fiancée and himself) were then in the back of the house and did not hear anything untoward (the block is quite big; the house some 70 square metres).
He subsequently walked his mother out to the car before it got too dark. She was in her 70s and now suffers from Alzheimer’s. A medical report was tendered from Dr Lajoie which states that she suffers confusion and memory loss and would not recall the motor vehicle accident in 2011.[9]
[9] Exhibit F, Report of Dr Lajoie dated 6 March 2014.
He then went to go to his car to bring it in the garage and saw the damage to his vehicle. He was in “shock”. The vehicle was still locked and the ignition off with no note or anything to indicate who had caused the damage to the vehicle. It was in the same position as when he left it.
He attempted to move the vehicle but it was not driveable. He thought the differential or axle was damaged so he locked it back up and went inside.
He observed a bit of plastic and debris on the ground and a bit of debris in the vehicle, but he did not go out and look over the next day or so.
He then came in, advised Kyla, and started making contact with his financial controller, the broker (Arrivis), the Moonee Ponds police station and Western General Body Works (a panel shop), to pick the vehicle up.
The panel shop was run by Mr Buzadzic. Mr Buzadzic was also a director and shareholder of another company, Logistics Car Rentals Pty Ltd, which also operated at the same address in Gordon Street, Maribyrnong.
The evidence of Mr Bates was that the police advised that there was no reason to attend because there were no witnesses and no-one was injured.
He was also told by Western General that he did not need to be in attendance because they would just pick up the car.
The telephone records from Telstra confirm contact with each of the financial controller, Arrivis, Western General and the police station between 5.00pm and 5.45pm on 28 September 2011.[10]
[10] Exhibit G, extract from Telstra records appearing at defendant court book page 23.
The car was subsequently picked up though Mr Bates was in the house at the time.
His fiancée did not go out to look at the vehicle and he does not believe she saw the car in its damaged state. Further, although he subsequently made inquiries of neighbours, the identity of the driver is unknown.
He subsequently attended the main workshop at Western General Body Works to pick up some belongings from the car which was in a large shed with lots of vehicles in close proximity to it.
He has not otherwise seen the car since the accident and has subsequently sold the car to Logistics.
The plaintiff’s account of the events of 28 September was generally consistent and coherent.
The defendant criticized the fact that there was little corroboration of this account and suggested, in particular, that it would be expected that someone would see the car afterwards.
However, there was some corroboration of the plaintiff’s account, including by way of the telephone records cited above.
I also do not consider it surprising that no-one saw the vehicle that night, particularly given it was dark and raining. It would be very unlikely that any witness would have a clear reliable view given the circumstances.
Criticisms
Extensive criticisms were made of Mr Bates. Most of them were concerned with his conduct in selling his vehicle and opposing the defendant’s summonses which will be dealt with separately, below.
A further specific criticism was made as to his response to one of the questions asked at his first interview on 29 November 2011.
The question and answer was as follows:
Q35: Now, in the last two years have you received any traffic infringements of any kind, excluding parking fines and Citylink fines? So it’s just anything that you were pulled over for or you received a fine in the mail?
A: Off the top of my head, two years is a long time so I’d have to get my PA to pull all that sort of stuff out.
In fact an article in The Age of June 2012 suggested that Mr Bates had had his Ferrari car impounded in October 2011 for driving at 186 kilometres per hour on the Calder freeway. Further, that he had (later) had his licence suspended for 12 months – the minimum loss of licence – and had been convicted and fined $1200.
The evidence of Mr Bates was that it was an infringement which had not yet been determined and he had not even been charged at the time of the interview and that it was a misinterpretation of the question.
The response of Mr Bates was unimpressive and lacked candour. However, there is some ambiguity in the question since, although there was reference to being “pulled over”, this was in the context of a question about traffic “infringements.” The question was also asked in a situation of relatively immediacy in an oral interview, where there was limited opportunity for reflection.
A further matter raised by the defendant was that after the alleged collision the plaintiff did not have telephone contact with Mr Buzadzic until over 24 hours later. However, I did not consider this to cast any aspersions on the credit of the plaintiff, particularly given there was insufficient evidence of the pattern of their telephone communications over a long period of time.
Mr Bates was not a perfect witness and, as will be seen below, there were also some inconsistencies in his testimony. However, having had an opportunity to observe his demeanour, I consider that any gaps in memory and/or inconsistencies were generally explicable by the passage of time and the stress of the litigation process.
Mr Bates generally presented as an honest and genuine witness who calmly maintained his position that he had “done nothing wrong”.
Moreover, his account of the critical events of 28 September was both credible and cohesive, and supported by the telephone records.
It remains to turn to other witnesses.
Mr Harrison and evidence re towing
Mr Harrison had worked for Western General Bodyworks for 26 years and had been working as a tow truck driver since he was 18. Mr Buzadzic was his boss and his brother-in-law. He also knew Mr Bates as his boss’ friend and also through going racing with him.
He presented as an unsophisticated man who was somewhat overwhelmed by the court process.
His evidence was that he towed the vehicle by picking it up from the front of Mr Bates’ house though he was “not real sure of the dates”. He towed the car on request from “Dave or Danny” at Western General Bodyworks. He was “not real sure” where he found the car keys but confirmed the car “looked like it was hit there”. He then towed it to the panel shop at 84 Gordon Street, Maribyrnong.
Under examination he suggested he did not pay much attention to the debris because he didn’t clean it up but then said he “remembered seeing” it and that the car was “damaged there, yeah”.
He claimed the car was later moved to a shed in the “yard” (this was apparently a storage shed at Western General for written off vehicles in Maidstone). He claimed that the front bar “would have been damaged through us storing it and transporting it from yard to yard”.
The defendant criticised the evidence of Mr Harrison. In particular the following aspects were highlighted:
· That he gave implausible and inconsistent evidence about matters including the damage to the front of the vehicle; whether there was debris; and whether the accident had even been outside the plaintiff’s home;
· His poor recollection as to various matters including the weather at the time.
The evidence about the front of the car was unsatisfactory. Thus, Mr Harrison initially said he recalled the vehicle having no damage to the front before ultimately conceding that he did not recall whether the vehicle had damage to the front or not.
There were also inconsistencies in his evidence. For example, under cross-examination he conceded that he could not really recall whether he saw debris. On being pressed as to whether it was an accident scene he also suggested that he did not think at the time that it was where the accident happened; he just thought it was parked out the front. This was inconsistent with his earlier testimony that it “looked like it was hit there…”.
I accept that Mr Harrison generally had a poor recollection of events. However, given the effluxion of time and the number of tows he undertook, this was hardly surprising. Although he conceded that he did not remember the day or the weather, what he ultimately claimed to remember (a number of times) was that the car was “out the front of his house. I can remember picking the car up and I can remember towing it to work”.
I found this evidence to be credible and accept it. It thereby corroborates that the tow occurred from outside the front of Mr Bates’ house.
A further issue raised by the defendant was the absence of contemporaneous evidence of the tow and the state of documentation of Western General Bodyworks generally, including as to the tow.
Thus, Mr Harrison did not complete a towage authority because he believed it was not an accident scene. However, he also gave evidence that there would ordinarily be a sheet completed in a towage bound book to record the towage service. Nevertheless, no such book was produced.
The defendant further highlighted other issues with the documentation from Western General Bodyworks, including:
· There was only one invoice for the tow which was not contemporaneous but dated 30 May 2013 for an amount of $454.54 (which also included an amount for storage);[11]
[11] Exhibit H, tax invoice from Western General Towing Pty Ltd appearing at plaintiff court book page 45.
· Western General had in fact rendered 3 different invoices of the same date and number for storage showing 3 different amounts;[12]
[12] Ibid and also Exhibit 7, tax invoice dated 30 May 2013 (not included in court book), and Exhibit 15, a copy of a subpoena to Western General Bodyworks together with the invoice produced (not included in court book), page 7 of 7.
· That there was no evidence from the bound book Mr Harrison gave evidence about; and
· It was illegal to tow a vehicle from a road accident scene without written authorisation.[13]
[13] Citing the Accident Towing Service Act s142.
The explanation for these various issues from Mr Buzadzic was that there was a difference between a tow from an owner’s home and a tow from an accident allocation scene, like an intersection. A docket is not raised for a tow from an owner’s home and there was no accident allocation tow docket for this car. Further, that he knew they had towed the car because they knew whose car it was.
Mr Harrison’s evidence was also to the effect that he believed an accident scene was one where the police and fire brigade were in attendance.
These explanations were not entirely satisfactory. However, the fact remains that the towing did occur since, at the latest, by 3 October the car was present at the Western General Bodyworks site (given that was when Mr Planko inspected it).
The preponderance of the evidence was also that the car was not driveable. As well as the evidence of Mr Bates himself, there was the evidence of Mr Planko, above, as to the body being compromised. In oral evidence he said he was not surprised that the vehicle in its damaged state was not driveable. Mr Edgerton also gave evidence that Mr Planko’s description suggested that driving the vehicle would cause further damage to the drive train of the car.
I accept that there is no contemporaneous evidence that the tow occurred on the precise date the plaintiff claims. However, given that the state of the car suggested it had to have been towed sometime, this is not as significant as it might otherwise be.
Mr Harrison did remember picking the car up from outside the plaintiff’s house. When it is taken with the evidence about the state of the car, his evidence is supportive of the plaintiff’s claim that the accident occurred outside his home.
Ms White
Ms White was the sister of the plaintiff and worked as an administrative manager for his company.
Her evidence was that she remembered seeing her brother’s car on the morning of 28 September 2011 which date she remembered because it was her daughter’s 18th birthday.
Her evidence was that they arrived at work under the carport and that her brother parked next to her; they rolled up at the same time which was not unusual. She got out of her car and spoke to Mr Bates while he was still sitting in his car with his door open and asked him whether he had remembered to text her daughter to say happy birthday. He said he had and they discussed dinner for that night.
She had parked on the passenger side but walked around to speak to him while he was still sitting in his car. She noticed nothing unusual about the driver’s side of the car and said it was “definitely not” in the condition shown in the photographs post accident.
The defendant submitted that this evidence was unreliable particularly since:
· she was the sister and employee of the plaintiff;
· her memory was unreliable, particularly since she had no cause to recall the event until asked to give evidence a week prior and she had no recollection of any other conversation with the plaintiff on her daughter’s birthday in other years; and
· that she gave evidence that she told the plaintiff she could remember arriving at the same time whereas this was inconsistent with the plaintiff’s evidence “of his sister’s expected evidence” which was that she would say she arrived after him.
The fact that she was a sister and employee did not mean her evidence was to be dismissed. She did not present as a person ready to give helpful evidence regardless of its veracity.
It is true that her evidence was that she was only asked to recall the event shortly prior to giving evidence and that there were other gaps in her memory. However, she maintained that she remembered this date because it coincided with her daughter’s 18th birthday. I found this explanation to be credible.
Finally, the fact that the plaintiff was less than clear as to his sister’s expected evidence is not in my view significant.
Overall, I accept Ms White as a witness of truth and accept that she had a memory of this event for the reason she enunciated.
I therefore accept Ms White’s evidence that the vehicle was undamaged on the morning of 28 September. Although it is possible that the vehicle was damaged in other circumstances during the course of the day, her evidence generally supports the plaintiff’s claims and significantly narrows the opportunity for the damage to occur in different circumstances.
Mr Buzadzic
The evidence of Mr Buzadzic was centred on the course of the interlocutory applications for inspection and purchase and management of the vehicle post sale.
It will therefore be dealt with, below, in the context of the applications to the Court.
As a general matter, Mr Buzadzic did have some issues with memory and lacked precision in giving evidence at times. However, he did not present as a dishonest witness intent on destroying evidence, as suggested by the defendant.
Court applications and alleged “consciousness of guilt”
The defendant alleged in closing that Mr Buzadzic and Mr Bates were acting “in concert” and were “motivated by the intention to prevent the defendant getting access to the electronic modules prior to deletion”. Further that their conduct in seeking to prevent access demonstrated a “real consciousness of guilt”.[14]
[14] Defendant’s final submissions dated 21 March 2014, paragraphs 42 and 27(a), and transcript dated 24 March 2014, page 956.
In particular it was suggested that the “concert” was demonstrated by the fact that the solicitor, Mr Logan, was acting for both men, at least in a de facto sense, including by drawing affidavits for both.
For reasons, below, there is no basis to suggest that data was actually erased.
100. However, it was suggested that this did not mean the requisite intent was lacking. The allegation also went to the credit of both men.
101. In order to assess this serious allegation, it is necessary to detail a chronology of relevant events.
Chronology of events post issue
Pre summons
102. By March/April 2013, it was some 6 months since the case had been issued and 18 months since the accident occurred. There had also been at least two inspections of the vehicle back in late 2011 (by Mr Planko and Mr Edgerton). There was also a further inspection on 8 March 2013.[15]
[15] Exhibit 3, affidavit of the plaintiff dated 31 May 2013 appearing at defendant court book pages 387 to 389, paragraph 9.
103. There was a suggestion that Hall and Wilcox wrote to Mr Logan asking that the car be retained for further inspection by letter dated 18 December 2012 (though the letter is not in evidence).
104. However, the plaintiff gave evidence under examination-in-chief that he had no knowledge that the insurer was still interested in the vehicle during the 6 weeks prior to 21 May or in fact on 21 May 2013 (at which point there is an invoice evidencing his sale of the car to Logistics).[16]
[16] Exhibit K, invoice from Alternative Freight Services dated 21 May 2013 appearing at plaintiff court book page 44.
105. He had also decided to sell the vehicle. This was because the final finance payment was due (in June 2013) and he wanted to sell and put the proceeds towards the losses he was incurring. His evidence was that he had discussions about Mr Buzadzic purchasing the car some 5-6 weeks prior to 21 May. However, he accepted that there was no agreement at a specific price until after 14 May.[17] Further, that he did not receive the proceeds of sale until September.
[17] An email chain dated 14 May 2013 supports this given it appeared that Pickles Auctions provided a price estimate of $34,700 at this time to David Stephenson of Western General Body Works – see Exhibit 6.
106. Mr Buzadzic gave evidence that the sale was negotiated “months” prior to 21 May, although in re-examination he said it was February. He purchased it to fix it up so it was drivable and later sold it.
3 April letter
107. On 2 April 2013 Mr Bates’ solicitors wrote to the defendant’s solicitors, inter alia, in relation to a request for a “third inspection”. The letter noted that the next stage of the proceeding was to organise a mediation. It further states:
“our client is frustrated at the steps taken by the Defendant to avoid complying with the orders made at the directions hearing. We therefore are instructed to contact the court to have the matter set down for a further directions hearing and have the matter heard before October 2013…
[In relation to a further third inspection] “we are instructed that the vehicle has been driven several times, and has had the battery disconnected for over 6 months. We therefore maintain that any data stored in the vehicle’s engine management system will either be corrupt and or erased”.[18] (emphasis added)
[18] Exhibit 4, correspondence from Nick Logan dated 2 April 2013 appearing at defendant court book page 377.
108. The evidence of Mr Bates was that he did not believe he gave the instruction about the data. Mr Buzadzic did not know if he gave the instructions, but agreed he provided some information to Mr Logan to resist the application. In his words “it had dragged on for way too long. Mr Bates was suffering. They had plenty of time to look at this car”.
109. By correspondence of 29 April 2013, Hall and Wilcox advised that the defendant intended to issue an application to have the plaintiff’s vehicle delivered to BMW for the purpose of downloading the data recorded in the airbag control module.[19]
[19] Exhibit 5, correspondence from Hall & Wilcox dated 29 April 2012 appearing at defendant court book page 378.
First Summons
110. By summons issued 7 May the defendant sought, inter alia, delivery of the motor vehicle to BMW to download “all of the data contained in the vehicle’s airbag control module event data recorder and/or the data contained in the module that controls the vehicle’s safety features”.[20]
[20] Summons issued 7 May 2013 addressed to the plaintiff, paragraph 3.
111. The plaintiff admitted in an affidavit that he was aware of this application on 8 May[21] (which was inconsistent with his earlier evidence, above).
[21] Exhibit 3, affidavit of the plaintiff dated 31 May 2013 appearing at defendant court book pages 387 to 389, paragraph 12.
112. By correspondence of 29 May, Hall and Wilcox refer to a telephone conversation with Mr Logan wherein they were advised “that your client sold the subject vehicle one week ago” and that the application was opposed with the suggestion made by Mr Logan that it was merely a delay tactic on the part of the defendant. Also that Mr Logan has said the defendant had “refused to mediate the dispute”.[22]
[22] Exhibit 8, correspondence from Hall & Wilcox dated 29 May 2013 appearing at defendant court book pages 760 to 761.
113. Mr Bates agreed that he opposed the application because the vehicle needed to be paid out and he was grossly out of pocket financially. He thought he had made every effort to engage already.
114. In an affidavit of 4 June in opposition to the summons, Mr Logan raised issues as to the process to be undertaken to retrieve the data which is “complex, time consuming, and could lead to an outcome where no data is produced, no relevant data, or unreliable data”.[23]
[23] Exhibit 9, affidavit of Nicholas Patrick Logan dated 4 June 2013 with exhibits appearing at defendant court book pages 399 to 407, paragraph 29.
115. He concluded by highlighting the defendant’s delays in the matter and raises concerns about whether the plaintiff’s claim could be heard on the date set for trial of 24 November 2013; “This is unacceptable to the Plaintiff. The defendant has had nearly two years in which to interrogate and assess the vehicle”.[24]
[24] Ibid, paragraph 35.
116. By order of 6 June, Judge Anderson dismissed the summons (the plaintiff no longer owned the car), but directed that any further application directed to Logistics should be filed and served as soon as possible.[25]
[25] Order of His Honour Judge Anderson dated 6 June 2013, orders 1 and 2.
Second summons
117. Following this, the defendant issued a further summons on 20 June 2013 seeking orders, inter alia, for Logistics Car Rentals to deliver the vehicle to BMW Australia. It was initially returnable on 8 July.
118. By affidavit of 5 July, Mr Logan indicated that the plaintiff “did not consent to the application” and in fact opposed any orders being made against third parties (BMW). The reason given was as follows:
“4. The Plaintiff opposes any order sought by the Defendant against third parties who are not a part of this proceeding. If the Defendant were to be successful in its application then orders against non-parties will follow causing complexity of the Plaintiff’s claim. This would likely lengthen the duration of the trial. This will increase the Plaintiff’s costs considerably. Any orders made against these third parties will cause inconvenience to both parties and both are likely in incur (sic) substantial legal costs. The Defendant has not offered to pay the costs of the current application.
5. The Plaintiff is at an unreasonable risk of having costs ordered against him or in the cause. No offer from the Defendant to indemnify the third parties costs has been made. Therefore these non parties may seek their costs from the Plaintiff.”[26]
[26] Exhibit 10, affidavit of Nicholas Patrick Logan sworn 5 July 2013 appearing at defendant court book paged 408 to 425.
119. The affidavit further highlights that significant costs had already been incurred and considered that any further evidence was “speculative”. Further that no reason had been put forward for the “extraordinary delay and length of time it has taken to examine the Plaintiff’s vehicle”.[27]
[27] Ibid, paragraphs 6, 14 and 28.
120. Mr Logan also indicated that he had been advised by David Stephenson (of Western General Bodyworks) that the computer system on board the vehicle was water damaged after being taken into storage. He opined that the information the defendant believed to be on the airbag module was “corrupt, unreliable and is no longer in existence” and also said he was advised by Western General that all electronic computer modules had been replaced due to being affected by water damage. The affidavit concludes by seeking adjudication of the plaintiff’s claim without further delay.
121. On 27 June 2013 Mr Buzadzic also swore an affidavit opposing the summons.[28] Mr Buzadzic admitted that Mr Logan assisted him with this affidavit.
[28] Exhibit 11, affidavit of Danny Buzadzic dated 27 June 2013 appearing at defendant court book pages 426 to 427.
122. This affidavit included the following statements:
· I have now repaired and reinstated the vehicle to a pre accident condition;
· As part of the repair process, I replaced the entire computer system as part of the usual repair process, including the module that controls the airbag;
· I have transported the vehicle to a BMW dealership to be inspected and to re-programme the engine management system to prepare the vehicle for re-registration;
· The current data recorder fitted to the vehicle was not and is not the module that was on board the vehicle at the time of the accident.
123. Complaints are made about this affidavit which will be dealt with below.
124. It is not in dispute that on 4 July 2013 the vehicle was delivered to Geelong BMW. A repair order number in the name of Geelong BMW shows instructions to:
· check RH side of car underside;
· clear faults; and
· carry out oil change and safety check (has not been driven in two years).[29]
[29] Exhibit 18, job sheet of Geelong BMW dated 4 July 2013 appearing at defendant court book page 356.
125. There was evidence from a Mr Stokes, at Geelong BMW, about a conversation on about this date which will be referred to below.
126. The evidence of Mr Buzadzic was that he asked Geelong BMW to “clear the faults”; given the car had “sat around” for two years such that it needed to be reset. His evidence was also that - apart from the replacement of the engine control unit (which was faulty) - no other component of the BMW was changed, tampered with, or altered before the insurance people inspected it.
127. The evidence of Mr Bates under examination was that he had no knowledge of what was occurring with his former car in around June/July 2013. Further, although he appeared to accept that there “would have” been some general discussions about repairs under cross-examination, he could not recall any specifics.
128. In any event, by email from Mr Logan of 10 July, he advised that he had received instructions from the plaintiff to consent to the application returnable on Friday. He confirmed that the plaintiff had contacted Mr Buzadzic to discuss the situation and that “in order to avoid incurring further costs” he was instructed by the plaintiff that Mr Buzadzic would consent to having his vehicle inspected.[30]
[30] Exhibit 12, affidavit of Nicholas Patrick Logan sworn 26 July 2013 appearing at defendant court book page 979.
129. By this stage, there was evidence from Mr Lee (who provided affidavits on behalf of BMW) which suggested that the airbags might have been deployed (although this could not be ascertained with certainty in the absence of an inspection).[31] This was significant since the airbags could only have deployed if, contrary to the plaintiff’s claim, the ignition had been turned on at the time of the accident.[32]
[31] Fourth affidavit of Mr Stephen John Lee dated 15 July 2013, appearing at defendant court book pages 466 to 468, paragraph 7.
[32] Third affidavit of Mr Stephen John Lee dated 12 July 2013, appearing at defendant court book pages 456 to 465, paragraph 16.
130. In an affidavit of 26 July Mr Logan stated that the defendant knew or ought to have known the vehicle was a write off in the light of Mr Planko’s assessment. Therefore, any purchaser of the salvage would have needed to take the vehicle to a BMW dealership to clear the faults and memory before presenting it to Vic Roads for inspection. He indicated that he was instructed by the plaintiff to make contact with Mr Buzadzic to obtain information about the vehicle and that he had information from Mr Buzadzic under instructions from the plaintiff to draft his affidavits. Further that, given the plaintiff had not seen his vehicle since it was towed from the accident scene in September 2011, that he was instructed to make contact with Mr Buzadzic to verify instructions and ascertain what he had done with the vehicle.[33]
[33] Exhibit 12, affidavit of Nicholas Patrick Logan sworn 26 July 2013 appearing at defendant court book pages 925 to 979, paragraphs 8, 13, 15 and 16.
131. In an affidavit of 26 July, Mr Buzadzic also said the request to clear the faults was not motivated by any desire to hide data. Rather he wanted to register the vehicle and knew the fault memory needed to be cleared and reset in order for the car to be deemed roadworthy and legally able to be registered.[34]
[34] Exhibit 19, affidavit of Mr Buzadzic dated 26 July 2013 appearing at defendant court book pages 428 to 455, paragraph 8.
132. On 31 July 2013, the summons was heard by Judge Lacava. His Honour ordered that BMW was to facilitate testing of the Advanced Crash Safety Module (ACSM) in Germany.
133. According to the evidence of Mr Lee, the ACSM was there to assess if the vehicle was involved in an accident, and to deploy airbags if required to protect the occupants.
134. Judge Lacava further vacated the trial date of 26 November 2013 and listed the case for trial on 9 December 2013 (though it was later relisted again for 11 March 2014).
135. In the result, as will be seen, below, the ACSM unit was taken to Germany by Mr Lee.
136. However, in the result, no crash telegram was recorded on the ACSM data such that (it is now agreed), consistent with the plaintiff’s case, the airbags had not in fact deployed.
Findings
137. A raft of criticisms were made about the plaintiff’s case on the basis of the evidence above, some of which did not rise above mere suspicion.
138. However, there were specific complaints about Mr Buzadzic, in particular:
· about his affidavit of 27 June 2013;
· that he generally gave evidence in relation to his opposition to the summons that was dishonest, implausible and inconsistent; and
· that his evidence in relation to clearing codes and delivery of the vehicle was dishonest, implausible and inconsistent, including his testimony about the evidence of Mr Stokes.
139. In relation to the plaintiff, the more significant complaints appeared to be:
· That the plaintiff “deliberately contrived a sale to his close friend for the purpose of avoiding inspection” and not for the financial reasons alleged;[35]
[35] Defendant’s final submissions paragraph 30.
· That the “only plausible explanation” for the ultimate consent was that the plaintiff believed that all codes had now been deleted;[36] and
[36] Ibid, paragraph 41.
· That the plaintiff had no reason to resist the second application and to pay for his lawyer to assist Buzadzic; the only inference being that he was concerned about what the data might reveal.[37]
[37] Ibid, paragraph 42(b).
Mr Buzadzic
140. Regardless of doubts as to the motives of Mr Buzadzic, the plaintiff was not in possession of the car after September 2011. As indicated already, he also gave evidence in examination-in-chief that he did not know what repairs were being conducted on his car in mid 2013. It is true that he was less confident about what was actually discussed under the pressure of cross-examination, suggesting at one stage that he could not say what was discussed. When he was pressed further he said he was sure the discussions “would have” included the fact that Mr Buzadzic was repairing the car but that he could not recall the specifics.
141. However, the specific evidence of Mr Bates was that he found out some time later that Mr Buzadzic had taken the car to Geelong but he was not aware of it at the time. In particular, he denied being told that Mr Buzadzic had taken it there and asked them to clear the faults. Nor was he told that Mr Buzadzic had asked whether it could be done in a way “that BMW would not be able to receive the information”.
142. Mr Buzadzic also claimed he had no conversations with Mr Bates about things to be done to the vehicle after he bought it.
143. I accept that Mr Bates was not apprised of what precisely was being done to the car at Geelong.
144. Thus even if Mr Buzadzic’s evidence lacked credibility and or reliability, this did not establish any bad faith on the part of the plaintiff.
145. Turning however to the particular complaints about Mr Buzadzic, Mr Buzadzic did agree that the affidavit contained an inaccurate statement to the effect that he had replaced the entire computer system, and also that the vehicle had been repaired to a pre-accident condition. However, he claimed he was given advice by his workers and that he did not knowingly state anything incorrect.
146. Mr Buzadzic did give vague evidence, at times, about his position on the defendant’s summons and could not recall many details. However, I accept that he did in fact oppose the defendant’s application as the contemporaneous evidence suggests. This however does not mean that the opposition was for the improper purpose alleged. To the contrary, the more readily acceptable explanation was, as Mr Buzadzic suggested, because he was frustrated that the matter had “dragged on too long” as is consistent with the solicitor’s correspondence.
147. Finally, there was the evidence of Mr Stokes, a service advisor at Geelong BMW who recalled the BMW being brought into Geelong on 4 July 2013. His evidence was that he had a conversation with “Dave” at Western General who said he wanted the faults cleared and then handed him to the “owner”. This “owner” then said that he wanted the guys in the workshop to clear all the faults out of the car. Mr Stokes also claimed that “he also queried me whether BMW would see that information, um.” He stated that the owner further stressed a number of times that he wanted it done before lunchtime that day. He also asked for an oil service and vehicle safety check as the car had not been driven for a number of years. Under cross-examination Mr Stokes accepted that there was nothing untoward about an instruction to clear the faults for a vehicle which had been stored for a long time. Further, that it is well known in the industry that BMW would see the data. He did not believe it was Mr Bates that he spoke to.
148. Mr Buzadzic denied having any conversation with Mr Stokes although he admitted giving the instruction to clear the codes.
149. I accept that, despite Mr Buzadzic’s denials, he is likely to be the “owner” with whom Mr Stokes had a conversation. However, I am not satisfied that Mr Stokes had a reliable recollection of what, if anything, was actually said about “seeing” data. Firstly, the actual evidence given by Mr Stokes was conclusory in nature and did not give the precise words spoken (his evidence was that he “queried me” whether BMW would see that information). Secondly, his evidence conflicted with the proposition actually put to Mr Buzadzic in cross examination which was that he specifically asked Mr Stokes if he could hide data from BMW. Finally, the conversation was also not the subject of any contemporaneous note.
150. In relation to the clearing of the codes, and the conversation with Mr Stokes, I accept that Mr Buzadzic gave Mr Stokes an instruction to clear the codes a few days before the matter was due to come before the court. Further, that he expressed some urgency about it: in his own words he was “impatient” and wanted it done “straight away” because he considered it to be his vehicle. This was consistent with some other evidence of Mr Buzadzic that they had already tried using their own computers to clear the faults to save going to Geelong but they had been unsuccessful (because the car was “pretty technical”) so that the car had to go to Geelong.
151. Notwithstanding all these findings, however, the clearing of codes was a normal part of the service process to register a car and make it safe and roadworthy. The request for urgency may raise suspicion but is explicable by Mr Buzadzic’s evident dislike of the insurance company such that he did not want to assist it.
152. Moreover, regardless of any motives of Mr Buzadzic, I accept that Mr Bates was not apprised of what precisely was being done to the car at Geelong. Mr Stokes also accepted that he was not speaking to Mr Bates.
Plaintiff
153. I accept that there were some inaccuracies and inconsistencies in the plaintiff’s evidence about the sale and requests for access. For example, I accept that the plaintiff was wrong when he suggested that he was unaware that the defendant wanted access to the vehicle in the five weeks prior to 21 May given his own evidence was that he was aware by 8 May. I also accept, as the plaintiff ultimately did, that no actual price was agreed upon for a sale until after 14 May.
154. Nevertheless, I accept that early in 2013, both men had effectively “shaken hands” on an arrangement whereby the car was to be sold to Mr Buzadzic notwithstanding that the price was not agreed upon until somewhere between 14 and 21 May. Contrary to the defendant’s suggestion, I also do not consider that the sale was “contrived”. Rather, I accept that the sale was motivated by financial concerns as the plaintiff alleged. This motivation is evidenced by the financial records that show a payout was made.[38]
[38] Exhibit C, NAB domestic payment report appearing at plaintiff court book page 51.
155. I also do not accept that the “only plausible explanation” for the ultimate consent was that the plaintiff believed that all codes had now been deleted. Instead, the ultimate consent is readily explicable by the terms of the email of Mr Logan of 10 July, namely “to avoid incurring further costs”. This is highly plausible in the context of all the correspondence in the case including the earlier correspondence wherein concern for delays and costs are recorded.
156. Finally, I do not accept that the “only inference” as to why the second application was resisted was that Mr Bates was concerned about what the data might reveal. The contemporaneous correspondence documents frustration with the court process, while the affidavit of Mr Logan of 5 July expresses concern about the costs of third parties.
157. Turning then to the alleged conspiracy, although I accept that there was communication between the men, there is nothing to establish they were acting in “concert” to avoid BMW being able to obtain data before it was deleted. Although it appears that Mr Logan drew affidavits for both men, Mr Bates did not believe he was billed for the drawing of affidavits for Mr Buzadzic. Even if he was, neither matter makes out the serious allegation that the men were acting together to further the purpose alleged.
158. I am therefore not satisfied that the plaintiff acted in concert with Mr Buzadzic “to avoid BMW being able to obtain data before it was deleted”. Rather the evidence suggests that his actions in selling the car were motivated by financial concerns while his opposition to the summonses was motivated by frustration with the court processes and financial concerns, including concerns about costs.
EXPERT EVIDENCE
Physical damage
159. The damage to the car was primarily to the right side of the vehicle with the experts agreeing that the damage was from the rear to the front.
160. There was no damage to the left hand side. However, there was also damage to the front bumper bar area, which will be considered further below.
161. In order to make findings based on the physical damage, evidence from three witnesses needs to be considered: Dr Richardson, Mr Edgerton and Mr Planko.
Dr Richardson
162. Dr Richardson completed two reports (of 19 October 2012 and 17 February 2014) after initially inspecting the vehicle in July 2012 and again in October 2012. He was cross-examined extensively.
163. He was a forensic engineer and the Managing Director of the firm Delta V Experts, a firm involved in the scientific analysis of collision events. He had a Bachelor of Mechanical Engineering (obtained in 1988); a Master of Science obtained from Royal Military College: and a Doctor of Philosophy obtained from Monash University in 2009 (the thesis concerned rollover protective structures).
164. His work history had predominantly involved vehicles and he had also worked with the Australian Army (from the late 1980s to 2000) including work related to rollover vehicles and fitting event data recorders into vehicles. He had also provided consultancy services to the Victoria police and to the Monash University Accident Research centre and did an attachment with the Victoria Police Accident Investigation Squad. Since 2002 he has essentially investigated car crashes “every day of the week”. He had conducted well in excess of 600 vehicle collision investigations and had also done a lot of work with garbage trucks.
165. In his first report he concluded that, on the balance of probabilities, it was his opinion that the BMW car was stationary and impacted into the side by a passing truck.[39]
[39] Exhibit M, first expert report of Dr Richardson dated 19 October 2012, plaintiff court book page 88.
166. In coming to this conclusion, he carefully went through the 12 major impact marks found on the driver’s side of the vehicle and highlighted two particular matters.
167. Firstly, impact “number 12” showed scratch marks on the rear driver’s side wheel rim. He stated that given scratch marks were not found on all 5 wheel spokes this was inconsistent with a rotating wheel receiving scratches. Therefore, the vehicle was stationary when the damage was sustained. Further that the alignment of impact mark 12 with other impact marks indicated that the vehicle was stationary.[40]
[40] Ibid, plaintiff court book page 85.
168. Under examination-in-chief he explained that if you rotated the wheel roughly 90 degrees anti-clockwise the scratch marks would align with the body damage on either side of the wheel. Further that the marks themselves were also linear whereas if the wheel was rotating and engaged with something the marks would show a “spiral pattern” or they would be curved in their nature. This suggested that the wheel was not turning at the time the marks were made on the vehicle.
169. Secondly, he noted that the damage sustained was consistent with being caused by a truck – with many protrusions – impacting to the side of the vehicle from the rear. If the damage was caused by the car driving, the car would have needed to reverse into an object such as a parked truck or a pole with many protruding parts.[41]
[41] Ibid, plaintiff court book page 87.
170. In oral evidence he explained that the car had engaged with an object with multiple protrusions on the side. A garbage truck was a possibility though he could not say definitively that it was a garbage truck.
171. In his supplementary report he commented on the reports of others.
172. In particular, in relation to Mr Edgerton, he noted that the scientific or factual basis upon which he formed an opinion that the vehicle was reversing and struck a fence does not appear to be detailed in the report.[42]
[42] Exhibit M, second expert report of Dr Richardson dated 17 February 2014, plaintiff court book page 252.
173. Under oral evidence he explained that he did not accept Mr Edgerton’s view that the damage was caused by an impact with a wall or fence because the wall or fence would be stationary such that the wheels would need to be moving which would result in different curved markings on the spokes of the rear wheel. Further, any such fence would also need to have a number of protrusions.
174. In relation to the physical damage, he again opined that, on the balance of probabilities, the car was stationary and impacted into the side by a passing truck.[43]
[43] Ibid, plaintiff court book page 264.
Mr Edgerton
175. Although the defendant had no obligation to prove some other cause of the damage,[44] it sought to elicit evidence of an “alternative theory” through the evidence of Mr Edgerton.
[44] See Vidal v NRMA Insurance [2005] NSWCA 390 at [15], approving Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 951 per Lord Brandon
176. Mr Edgerton was a senior forensic collision investigator who had previously been a member of the Victoria police force for 26 years including working with the Accident Investigation Section.
177. He had no tertiary qualifications, but had completed a number of courses, several through the Victoria police.
178. He prepared two reports dated 7 and 18 November 2011 and examined the vehicle on 27 October 2011.
179. In his first report he opined that the damage was not consistent with the claimed circumstances. Rather, the damage was considered to be “more consistent” with the vehicle moving, undergoing some form of loss of control and colliding with a fixed upright object. Given the damage to the vehicle the object struck was likely to have been some form of fencing.[45]
[45] Exhibit 22, first expert report of Mr Edgerton dated 7 November 2011, defendant court book page 499.
180. A “strong indication” that it was a fence or a wall as opposed to a passing vehicle was “the uniform height of the damage”.[46]
[46] Ibid, defendant court book page 498.
181. The reasoning was that if passed by a vehicle of lower height the damage could not have reached as high as it did. However if passed by a higher vehicle it could not cause the lower damage.
182. He notes the possibility of a 4WD or truck. He further notes the multiple gouges and deep penetrations. However, he considers that motor vehicles do not have significant or large protrusions. He then asks rhetorically that if it is not another vehicle, “what could have caused the damage?”
183. He then formed the view that it was more readily explained if the vehicle had collided with and gone through some form of fence with the white coloured paint transfer indicating a painted fence and more likely than not a wooden fence. The wooden rails, posts and palings would protrude and thereby explain the damage including the recessed damage on the centre of the rear wheel.
184. His further report was completed after he examined the collision scene on 18 November 2011. He was of the view that if the accident had occurred as reported then the wheels/tyres would have struck the kerb such that there would be distinctive marks on the kerb and probably the nature strip (which he did not find).
185. He also noted there was no evidence of any debris which would remain for a period upwards of months.
186. He restated his earlier conclusions.
187. In oral evidence he said he meant the term “uniform” in his report to refer to the fact that the damage extended right across the side of the vehicle from top to bottom.
188. He also stated that he believed the structure was “breaking up” as the vehicle was side swiping the structure. At one stage he also suggested that what was occurring was a loss of control whereby the vehicle had rotated through up to 180 degrees and impacted a structure as it was rotating and going backwards. He later suggested the structure may not be breaking up; it might just be an “irregular structure”.
189. He further accepted:
· that he would not be able to say whether the vehicle was moving or stopped from the marks on the wheel rim;
· that a paint analysis could have helped in distinguishing whether the paint transferred was house paint or paint from another vehicle. However, no such analysis had been done;
· there were no remnants of materials in the gouges as one would expect if a structure such as a wooden fence had punctured the vehicle;
· that the only debris would be the mirror; a part from the rear quarter panel, a bit from the front quarter panel and some glass from the rear vent window. Further, that he would be surprised if there weren’t street sweepers; that significant rain could wash things away; and that he did not look in the stormwater drains at his inspection date.
Consideration
190. Various challenges were made by the defendant to the opinion of Dr Richardson, to the effect that he was unable to explain a number of features on photographs of the damaged vehicle. These included:
· That there were scrapes travelling upwards/downwards;
· Some started and stopped;
· There was inconsistent damage on the rear wheel;
· That he was unable to produce a drawing of a truck to support his suggestion that the truck he depicted was capable of causing five particular markings.
191. It is true that Dr Richardson was unable to explain every marking on the photographs. However, his general explanation was that where two three dimensional vehicles hit each other you would not get a result where everything was “horizontal and perfect”. Therefore, although there were aspects he was unable to explain, this was consistent with the fact that contact with two moving vehicles was not a predictable course.
192. It is also important to note that there were aspects that were inexplicable on Mr Edgerton’s theory also. Thus, he was unable to explain the absence of remnants of the fence or wall. He was also unable to explain why the fence would not come into contact with the rubber part of the wheels.
193. Dr Richardson did provide some more specific explanations, however, which are summarized below.
Up and/or down
194. In terms of marks travelling up and/or down, the evidence of Dr Richardson was that, depending on the mass and suspension of the vehicles, there would be shifting positions on contact, particularly since with a car and truck there could be differences in movements as it goes along its length.
195. For example if there is a loading of the suspension on the BMW it is forced down with the movement, then travels back up. He further explained that it would depend on which part of the vehicle engaged with the other but that the vehicle could actually move up and down (or bounce) as different parts engaged. The other vehicle would also move laterally – in fact there was lateral movement both ways – since the vehicle would come back towards the right after moving to the left.
196. His evidence was best explained in his own words as follows (after being asked how the vehicle could be forced up in some places and down in some places):
Yes?---I can certainly see that if - if it's a truck, if I’m putting forward that it's a truck, that [the] footstep on the front of a truck creates the impact initially, that is low and horizontal. Some other part of the truck further down engages with the vehicle and causes it go up. I'd then - and I'm speculating now, Your Honour, I’m trying to explain this, but then if the truck, as it hits, realises it's doing it, he starts to then decelerate. Then you're going to get some other parts of the engagement at subsequent parts, where the actual movement is in a downward direction.
All right, so the - - -?---As the vehicle bounces.
Yes, bounces, that's a good word. I was just about to put to you, so the BMW is going up and down like a cork in an ocean?---That's probably an over exaggeration of its motion but it will move up and down.
Stopping
197. In terms of stopping his explanation was simply that whatever was engaging had simply stopped moving forward. Further that you needed to look at all the marks; not just individual ones. Additionally, that the alternative theory (of a fence “breaking up”) did not explain the marks running along the length of the vehicle.
198. He was not always able to give an explanation. However, he emphasized that different parts of the vehicle could be engaging at different height levels so different parts (or protrusions) engaged at different times as the three dimensional vehicle moved past. Again, there was a collision between two objects that were not rigid but were moving up and down and left and right.
Rear wheel
199. In relation to the rear wheel he remained firm that if an extra mark was counted near the centre of the wheel, it would still line up with other marks on the car as earlier described.
200. In relation to the damage into the centre of the wheel (which was recessed) his evidence was that the wheel rim was conical in shape. The marks were consistent with some tapering in towards the centre, being engaged, and then being pushed out.
Absence of drawing of truck to support five particular scrapings
201. The fact that Dr Richardson was unable to match the scratches with a particular truck is not in my view significant.
202. In any event, he did suggest that the “grabber” (which picks up a bin) might cause these marks.
203. He also explained that a garbage truck is likely to have protrusions made of all sorts of materials, including steels, rubber, and plastic. This explained why some marks might be light scrapes and others are penetrations.
204. The defendant also suggested that the BMW should not have been in the same position and further highlighted the lack of debris.
205. However, Dr Richardson suggested that it was only “possible” for the vehicle to have been moved to the kerb, but it would depend on a number of unknown factors including the severity of the impact. In fact later in his evidence he opined that the vehicle did not need to be travelling at 50 or 60 km an hour; it could be doing 10 or 12.
206. The evidence of Mr Edgerton was also that the only debris would be the mirror, a part from the rear quarter panel, a bit from the front quarter panel and some glass from the rear vent window.
Consideration
207. Overall, I accept the evidence of Dr Richardson. I also prefer his evidence to that of Mr Edgerton. My reasons are as follows.
208. Firstly, his analysis presented as sound and appeared to be reflective of his extensive technical knowledge and experience. Thus his wheel analysis was rigorous and effectively unchallenged by Mr Edgerton who admitted he was not in a position to tell if the vehicle was moving from the marks on the rim. A vehicle with multiple protrusions was also a perfectly natural explanation which was not the subject of any analysis in Mr Edgerton’s report (who simply stated that a vehicle did not have protrusions).
209. By way of contrast, the alternative “breaking up” theory was something added after Mr Edgerton’s report and was less then precise. The absence of remnants of the alleged fence or wall also did not support Mr Edgerton’s theory.
210. Further, while Dr Richardson presented as someone generally ready to acknowledge possibilities, Mr Edgerton presented as somewhat “black and white” at times. He was also ready to highlight matters of relatively minor significance to support his theory. For example, he was prepared to highlight the absence of debris notwithstanding the relatively low probative value of this matter given the time of his inspection.
211. Finally the conclusions of Dr Richardson were consistent with the evidence of Mr Planko who provided his assessment very early in the chronology before any “theories” were developed. In oral evidence he agreed with the proposition that if he assessed a vehicle and saw something inconsistent with the instructions as to the cause of the damage he had been given he would include that in his report. No such matter was included in this case however; rather, he described the vehicle as being “parked” consistent with the plaintiff’s account.
212. Overall, I accept the evidence of Dr Richardson, and prefer it over that of Mr Edgerton. It supports the plaintiff’s account that the car was stationary and impacted into the side by a passing vehicle.
Front damage
213. A remaining issue is the damage to the front of the car (which is not the subject of the claim). The defendant suggested that the most probable explanation is that the front damage happened in the same incident, relying on Mr Edgerton, while the plaintiff submitted that it was not part of the same incident though it was unnecessary to consider precisely how it arose.
214. It will be recalled that the evidence of Mr Bates was that there was no damage prior to the collision or he would have noticed it .
215. Mr Harrison gave unsatisfactory evidence in relation to this matter.
216. The evidence of Dr Richardson was that this damage occurred subsequent to the collision. He also confirmed the damage was from an unrelated event. Thus while the side damage comes from the back to the front; the damage on the front comes from the front to the back. There was also a different, relatively low velocity associated with the front damage.
217. Mr Planko also agreed that the front damage was not consistent with a sideswipe or the vehicle reversing into something.
218. In his report Mr Edgerton states that the damage on the front lower corner is separated from the other main damage and cannot have been caused by a sideswiping. Further, the vehicle moving forwards and colliding with a low fixed object such as a kerb could have caused it.[47] He concedes however that if the main damage is caused by a sideswiping then this damage was separate and unrelated. In oral evidence he claimed that the damage was probably from the one incident, but not from a side swipe and it looked like the vehicle had driven over some sort of low fixed object such as a kerb or gutter. However, he also agreed under cross-examination that the damage was not consistent with the vehicle moving rearwards and impacting an object.
[47] Ibid, defendant court book page 497.
219. The preponderance of the evidence therefore supports that this damage occurred in some incident separate from the incident causing the side damage. Even on Mr Edgerton’s evidence, the damage was not consistent with his alternative scenario of the vehicle reversing into something.
220. It appears likely that the front damage was caused in storage at Western General Bodyworks. However, I agree with the plaintiff that it generally avails neither side and is unnecessary to determine further.
Technical Evidence
221. In terms of technical evidence there were three areas to consider: the issue of airbags; the appearance of a particular code at the Geelong BMW dealership; and whether data was removed.
Airbags
222. The defendant accepts that airbags were not in fact deployed in the vehicle as a result of the accident.[48] If they had been deployed, this would tend to suggest that the ignition was on which would have been inconsistent with the plaintiff’s case. As it stands, the defendant is unable to suggest that the ignition was on because of the deployment of the airbags.
[48] Defendant’s final submissions dated 21 March 2014, paragraph 63.
223. A remaining issue was whether the non deployment of airbags suggested that the ignition was in fact off. In considering this issue the evidence of Mr Lee and Mr Richardson was significant.
Mr Lee
224. Mr Lee was a technical manager at BMW Australia Limited having joined BMW in 1991 commencing in the workshop and becoming a technical manager in 2004.
225. He had attended numerous BMW training courses, all of which related to computer systems of the BMW.
226. He was also a qualified senior motor mechanic.
227. He filed various affidavits in relation to the summons and completed a report of 1 November 2013, as well as confirming the contents of matters referred to in correspondence from Nick Logan of 7 March 2014 (save for the spelling of the word “Karroser” which should read “Karrouser”).[49]
[49] Exhibit S, correspondence from Nick Logan of 7 March 2014.
228. As indicated already, he had also earlier sworn an affidavit on 15 July, 2013 which suggested that the airbags might have been deployed, although this could not be ascertained with certainty in the absence of an inspection.[50]
[50] Fourth affidavit of Mr Stephen John Lee dated 15 July 2013, appearing at defendant court book pages 466 to 468, paragraph 7.
229. He then conducted an inspection and also removed the ACSM control unit so he could transport it to Germany. He then travelled to Germany with the unit and delivered it to Mr Michael Strobl from BMW.
230. He later received a report from Mr Strobl which stated that the ACSM was from the vehicle and there was no information pertaining to a crash event or a crash telegram from one of the vehicle crash sensors.
231. The defendant initially objected to the receipt of the information from Mr Strobl. However, on the basis of the plaintiff’s position that this information only went to the issue of the non-deployment of airbags, the objection was withdrawn.
232. Mr Lee ultimately concluded on the basis of the diagnostic information, the inspection, and the report of Mr Strobl, that the airbags had never deployed[51] and also confirmed that the airbags would only operate if the ignition was turned on.[52]
[51] Exhibit N, expert report of Stephen John Lee of 1 November 2013 appearing at plaintiff court book pages 401 to 458, paragraph 8.
[52] Third affidavit of Mr Stephen John Lee dated 12 July 2013, appearing at defendant court book pages 456 to 465, paragraph 16.
233. However, he did not suggest that it necessarily followed that the non deployment meant the ignition must have been off at the time the damage was incurred.
Dr Richardson
234. The evidence of Dr Richardson was that given the damage, if the ACSM was powered at the time he would expect it to record some near deployment event (in oral evidence he referred to this as a “non-deployment event”). Given there was no evidence on the ACSM at the time it was logical to conclude that the ignition was not on so the vehicle was stationary at the time of impact.[53]
[53] Exhibit M, second expert report of Dr Richardson dated 17 February 2014, plaintiff court book pages 253 and 263.
235. However he ultimately agreed that he does not know if near deployment events are actually recorded by BMW. In the absence of further evidence about the recording of non-deployment events, I am unable to be satisfied that the ignition was off by reason of the non deployment of the airbags.
236. Overall, then I find that the fact that the airbags did not deploy is consistent with the plaintiff’s account although of itself it does not demonstrate that the ignition was off.
Code 93BC and ignition
237. Another matter going to whether the ignition was on or off was the appearance of a code at Geelong immediately prior to the removal of the “faults” on 4 July 2013 (between 10.52am and 1.11pm on 4 July).
238. Mr Lee explained the concept of “clearing of faults” within control units as a reference to clearing faults which show up as warnings on the dashboard as well as faults within control units not evident to the driver. Such clearing of faults is normally part of an inspection service.
239. One of the fault codes initially generated on 4 July prior to clearance was given as “93BC KGM: Servotronic: DSC telegram timeout”.[54] This fault appears at the second page of the “fault memory list” from the Geelong dealership of 4 July (exhibit P).
[54] Exhibit P, Geelong BMW fault memory log dated 4 July 2013 appearing at defendant court book pages 361 to 364.
240. The defendant’s expert, Mr Tanti, filed a statement wherein he suggested that the generation of this code meant that the vehicle’s ignition was on at the time of the collision (although he later altered this conclusion). This was challenged by Mr Lee.
241. The evidence of both witnesses therefore warrants consideration.
Mr Lee
242. Mr Lee firstly gave detailed evidence as to the terms involved. Thus KGM means the body module; “servotronic” refers to a part of the power steering system; and DSC refers to dynamic stability control (traction control, ABS braking, stability control).
243. The 93BC code referred to the fact that electronic telegrams are sent like “handshakes” between control units to make sure the control unit at the other end is still talking, with many being messages sent within milliseconds. In this case, the logging of this fault in the KGM suggests that on one occasion out of the many, many times “handshakes” are sent, a telegram was not received in regard to the Servotronic, a sub-system of the DSC unit.
244. There could be a number of explanations for this code, for example, it could be just like ordinary computer issues such that it just needs to be booted again; there may be momentary low voltage; a bad connection; a lot of data being transmitted (“flooding “) such that some messages don’t get through; or a faulty control unit.
245. Mr Lee also produced some additional information from BMW as to the details for the faults at 10.52am and 1.11pm on 4 July (contained in exhibit R) and gave evidence with reference to this information.
246. Thus, the error generated did not cause a warning lamp to light up which suggests it was not a major fault. Significantly, his evidence was also that the existence of the fault says nothing at all about whether the vehicle was in an accident or whether there was a loss of control.
247. His evidence was also that the fault said nothing about the date on which the millisecond event occurred, nor did it say anything about the kilometre reading on the vehicle when the millisecond fault occurred; it just lists the mileage at the time that the codes were read out.
248. He does not know how Mr Tanti concludes that the ignition was on at the time of the collision. He had seen other vehicles in accidents where that particular code did not appear.
249. In response to the outcome of a test allegedly undertaken by Mr Tanti whereby the code was generated by throwing the vehicle to the left rather than the right, Mr Lee was of the view there was no correlation with throwing the vehicle left or right; it was just showing that there had been a telegram timeout.
250. Further that he had experience checking fault reports on M6s and M5s at driver training programs in 2008-2010. To the best of his memory he did not recall seeing this fault.
251. Critically, his evidence was that there was no data stored anywhere in any control unit to say that the ignition was on at the point of impact.
Mr Tanti
252. Mr Tanti was a motor mechanic and auto electrician and a director of Mastertech Industries Pty Ltd which firm had commenced in 2006 and recovered/interpreted data for, inter alia, insurance companies and other members of the public. He also provided training services to the NSW police.
253. He also called himself a “technical trainer” by reason of his work for some manufacturers training with their equipment though this involved no further study.
254. However, he had not done any courses run by BMW and had no training or qualifications related specifically to BMW vehicles and systems.
255. He completed a report dated 2 December 2013 and also generated a further report summarising the results of some tests he undertook on another BMW M6.
First report
256. In relation to the first report, paragraph 5 – as amended by his oral evidence – read as follows:
“I have been asked to report as to any conclusions that can be made from the vehicles fault memory data, dated the 4th of July, 2013. In my professional opinion, I am able to conclude that the vehicles ignition was on (terminal R) at the time of the
collisionloss of traction. A DSC telegram message was logged then the unit timed out and went into shutdown mode. Please refer to the top of page two of the attached document, “Fault Memory List” which shows a logged DSC Telegram. A telegram occurs within the operation of the safety systems and is a message that is sent out and recorded as the time ofan impacta loss of traction where the required minimum threshold is met. A TELEGRAM message can only be sent if the vehicles ignition is on.”
257. His conclusion was further:
In conclusion, it is my professional opinion that the vehicles ignition was on at the time of the
impactloss of traction, that the data had been erased prior to the second inspection made by BMW on the 4th July, 2013 and that there was no reason for the original module to be replaced” (last line bolded for emphasis).
258. As is apparent from the above, in oral evidence he changed the phrases time of “collision” and time of “an impact” to time of the “loss of traction” in the three places as indicated above. The only explanation for this was that he previously claimed to have seen this particular code on previous motor vehicles that he had inspected prior to repair and had concluded that it was from a form of impact but now believed it was a loss of traction.
259. The 7th paragraph of this report was also substantially amended such that it only contained the first sentence with the balance being deleted as follows:
“I have also been advised that a Reprogrammed Control Unit was allegedly purchased on or around the 18th June, 2013 on request.
This unit controls the airbags and stores the crash telegrams. A reprogrammed control unit has no stored history. These modules can be reset up to three times after a major deployment or eight times after a minor deployment before needing to be replaced. The control unit will however register an internal fault if it is unable to be reset. In my opinion, from the data I received and the fact that the vehicle has not been involved in any previous impacts, there was no supportive evidence for the original module to have been replaced. The installation of a new Reprogrammed Control Unit would essentially remove any history on that motor vehicle that would have previously been stored in.”
260. Thus, although he had originally suggested that the control unit purchased would remove previous history concerning the airbags/crash telegrams, he ultimately acknowledged that the reprogrammed control unit purchased on 18 June was not concerned with control of airbags because it was actually the DME (being the engine control unit which has nothing to do with airbags or accident related data).
261. Moreover, he conceded under cross examination that he had been told the unit had been water damaged and that, if it was water damaged, it would need to be replaced. He had nevertheless retained his conclusion, above, in the last paragraph that “there was no reason for the original module to be replaced”.
Second report
262. Mr Tanti also gave evidence that he undertook three different manoeuvres with the “test” BMW three times each in a cul de sac in an industrial estate.
263. For the first test he checked whether there was any fault code first and then conducted a “yaw” test which was to drive “erratically”. In his report he refers to turning the steering wheel to the right in this first test but in oral evidence he appeared to be suggesting the first was “straight ahead”. In any event, no additional fault code was produced on each of the three times he conducted this first test.
264. For the second test, he took the car into a slide, swinging it to the right, to a loss of control so that he has ended travelling backwards, stalling the car in the process. This did not generate the 93BC fault.
265. For the third test he performed a similar manoeuvre to the second, save that he swung to the left. This test generated the 93BC code.
266. Under cross-examination, Mr Tanti critically agreed that he did not do a test of whether the code would occur in the event of an impact because he did not test for impact.
267. He also did not do a control comparison test without losing traction.
268. He further did not test for a considerable number of variations, including different tread patterns, different surfaces, different numbers of occupants, accidental (as opposed to deliberate) loss of control and loss of control absent stalling.
269. He maintained that the code related to the kilometres displayed. However, he generally appeared to agree with Mr Lee’s explanation as to what the code was and that it could appear with only one missed signal in a fraction of a millisecond.
270. He also agreed that he had made no inquiries as to why the original control module was replaced and that he had in fact been told by Hall and Wilcox that the original unit was water damaged (which he accepted would mean it would need to be replaced). Despite this he had left his conclusion in his report that there was “no reason for the original module to be replaced”.
Consideration
271. Even at its highest, the opinion of Mr Tanti says nothing at all about whether the ignition was on at the time of the impact which is the critical concern of this case. To this end it is of little assistance.
272. In any event, to the extent it is necessary to do so, I prefer and accept the evidence of Mr Lee.
273. Mr Lee presented as a competent measured witness who had considerable experience with BMW technology.
274. I accept that Mr Lee had initially drawn an inaccurate hypothesis about the deployment of airbags but consider that he had expressed his views in an appropriately qualified way. Although he was also criticized for obtaining information “from the factory” this was hardly surprising given the nature of the material involved.
275. By way of contrast, Mr Tanti presented as less than measured, with a readiness to come to adverse conclusions without a sound basis. This was also demonstrated in his readiness to come to conclusions that he later needed to recant.
276. His “testing” process was also unsatisfactory in many respects, including that it lacked a control group of data where no traction was lost.
277. He also had little direct experience with BMW which was of significance in this particular context given the highly specialised subject matter.
278. I therefore prefer and accept the evidence of Mr Lee to the extent it conflicted with that of Mr Tanti. In particular, I accept the evidence of Mr Lee that there was no data stored anywhere with any control unit to say that the ignition was on at the point of impact. I also accept his evidence that the fault said nothing about the date on which the millisecond event occurred, nor did it say anything about the kilometre reading on the vehicle when the millisecond fault occurred.
279. I therefore reject the opinion of Mr Tanti to the extent it suggests that the ignition was on at the time of the accident. In my view the expert evidence does not establish whether the ignition was on or off at the time the damage was sustained.
Removal of data
280. In its Amended Defence, the defendant alleged that the plaintiff had directly, or through associates, replaced, or attempted to replace, computer systems, and/or erased data stored in the airbag control module of the car.[55]
[55] Amended defence to further amended statement of claim dated 3 December 2012, paragraph 12(l).
281. In closing, however, the defendant submitted only that the court “cannot be satisfied” that data was not removed whilst in Mr Buzadzic’s possession before the vehicle got to Geelong.
282. The possibility of the removal of data appeared to arise in three contexts as follows:
(a) in terms of the replacement of the control module;
(b) in relation to the clearing of faults;
(c) on the basis of certain evidence of Mr Tanti that the 93BC code should also have been matched by a fault in the ACSM.
Control module
283. There was no dispute that Western General Bodyworks were invoiced for a part described as an “RMGD Basic” by tax invoice from Geelong BMW dated 18 June 2013.[56] The evidence of Mr Lee was that this was for an engine control unit (ECU) or DME (digital motor electronic control unit) which controlled engine operation and which would not affect any accident related data.
[56] Exhibit O, Geelong BMW tax invoice dated 18 June 2013 appearing at defendant court Book 355.
284. Although initially suggesting in his report that this unit controlled airbags as indicated above, Mr Tanti withdrew this suggestion in oral evidence, accepting that the part number related to the DME which was also known as the engine control unit and did not control airbags.
285. There is therefore no basis for the suggestion that any relevant data was removed as a result of the replacement of the engine control unit.
Clearing of faults
286. There was also no basis to suggest that something untoward occurred by reason of the “clearing of faults” in July 2013.
287. As Mr Lee explained, the process was a normal part of an inspection service.
288. Mr Tanti also agreed that clearing the faults was part of every major inspection.
289. Mr Stokes also confirmed it is not an unusual step.
290. There is therefore no basis for suggesting that any data was removed by reason of any “clearing of the faults”.
Suggestion that extra code should be there
291. In Mr Tanti’s first report he suggested that there was data missing since the second part of the DSC telegram should have been logged in the airbag module. Further that any data including the ACSM (airbag module) can be easily erased.[57]
[57] Exhibit 25, first expert report of Mr Tanti dated 2 December 2013, defendant court book page 650.
292. In oral evidence he explained this (under cross-examination) such that the 93BC fault should be associated with a “Safety and Gateway/Advance Crash Safety Module ACSM” fault. His basis for this suggestion was that “every time I’ve seen that fault, I’ve had that fault code there” although he did not provide any objective evidence in support of this suggestion.
293. The fact that it was not there suggested to him that it had been “wiped”. In his view anybody with a generic tool can wipe it off; can go into the ACSM, and clear the airbag fault.
294. As indicated already, Mr Tanti provided no objective evidence beyond his anecdotal suggestion that the faults were associated “every time”.
295. In any event, Mr Lee’s evidence was that there was no reason for the 93BC fault to be in the ACSM. I accept this evidence given Mr Lee’s BMW experience.
296. In the light of this finding the suggestion that there was some missing code should be rejected. However, there is the additional difficulty as to whether something could be that easily wiped from the ACSM.
297. The evidence of Mr Lee was that the ACSM had not been broken or damaged and was original such that the airbag control unit had not been removed from the vehicle and was the original one as installed. Moreover, that they were able to see that electronically it had been at the dealership and they had read the fault memory out.
298. He explicitly disagreed with the suggestion that any data, including ACSM (airbag module) and crash telegrams can be “easily erased” with any diagnostic equipment that is capable of reading that motor vehicle.[58] He also saw nothing at all to give him cause to doubt the integrity of the data stored on the ACSM.
[58] Exhibit S, correspondence from Nick Logan of 7 March 2014, paragraphs 2 and 6.
299. There was also certain accident related data recorded in the ACSM that cannot be cleared and is permanently written in the unit. It can only be accessed by technicians at BMW Germany when the unit is in their physical possession.
300. Dr Richardson also gave evidence that there is nothing to suggest the ACSM can be manipulated using diagnostic tools.
301. For reasons given already, I generally prefer and accept the evidence of Mr Lee to that of Mr Tanti. It was also consistent with the evidence of Dr Richardson.
302. I therefore also reject Mr Tanti’s suggestion that “data was missing” based on his belief that some extra code should be present in the ACSM which had been removed.
Summary
303. In the light of each of the findings above, I reject the defendant’s suggestions that data stored in the airbag control module of the car was erased in this case. Nor is there any other basis to suggest that data was actually erased.
OTHER MATTERS
304. The defendant invited the court to draw adverse inferences based on the principles in Jones v Dunkel,[59] given the non-calling of a large number of witnesses.[60]
[59] [1959] 101 CLR 298.
[60] Defendant’s final submissions dated 21 March 2014, paragraphs 20 and 92-100
305. I do not consider that it would be appropriate for the plaintiff to call the large numbers of persons identified. In particular, there would be no reason to call cumulative evidence of the persons the plaintiff communicated with on the relevant day given the telephone records already substantiate that the contact occurred. There was also no reason to believe there would be a police report, nor that neighbours would have any relevant evidence to adduce.
306. I also do not consider it is appropriate for Mr Logan to be called. Much of what he could say would be the subject of privilege, while the rest is best assessed from the contemporaneous correspondence already referred to. I have, however, generally presumed he was acting on instructions.
307. I also do not consider that it would be expected that Mr Stephenson should be called as it would not be expected that he would give evidence on any matter of significance.
308. Finally, in terms of the plaintiff’s former spouse, the plaintiff’s evidence was that the two of them are in the process of separating and are “not on talking terms” with Kyla not interested in assisting Mr Bates in any way.
309. I accept this explanation for her non appearance such that I do not consider that her absence is a “telling factor” against acceptance of the plaintiff’s version.[61]
[61] Ibid, paragraph 97.
FINDINGS ON LIABILITY
310. My findings may be summarised as follows.
311. Mr Bates generally presented as an honest and genuine witness who was credible in his position that he had “done nothing wrong”. Moreover, his account of the critical events of 28 September 2011 was both credible and cohesive, and supported by the telephone records.
312. The evidence of Mr Harrison – when taken with the evidence of the state of the vehicle – supports the plaintiff’s account that the accident had occurred at the front of his house.
313. I accept Ms White’s evidence that the vehicle was undamaged on the morning of 28 September 2011. Although it is possible that the vehicle was damaged in other circumstances during the course of the day, her evidence also generally supports the plaintiff’s claims and significantly narrows the opportunity for the damage to occur in different circumstances.
314. I am not satisfied that the plaintiff acted in concert with Mr Buzadzic “to avoid BMW being able to obtain data before it was deleted”. Rather the evidence suggests that he sold the car because of financial concerns, while his opposition to the summonses was motivated by frustration with the court processes and financial concerns, including concerns about costs.
315. I accept the evidence of Dr Richardson, and prefer it over that of Mr Edgerton. It supports the plaintiff’s account that the car was stationary and impacted into the side by a passing vehicle.
316. The fact that the airbags did not deploy is consistent with the plaintiff’s account, although it does not positively demonstrate that the ignition was off.
317. I reject the opinion of Mr Tanti to the extent it suggests that the ignition was on at the time of the accident. In my view the expert evidence does not establish whether the ignition was on or off at the time the damage was sustained.
318. I reject the defendant’s suggestions that data stored in the airbag control module of the car was erased. Nor is there any other basis to suggest that data was actually erased.
319. Having regard to the above findings, I accept, on the balance of probabilities, that the plaintiff’s vehicle was damaged on 28 September 2011 whilst it was parked in front of his residence at 105 Woodland Street Essendon when it was struck by a passing vehicle, the driver of which did not leave any details.
320. The plaintiff has discharged his onus and is entitled to judgment on the claim, with the only remaining issue being that of quantum.
QUANTUM
321. Section 1 of the Policy provided that if the vehicle was declared to be a total loss the insurer was to pay the sum insured, any negotiated value, or replace the vehicle, less any excess applicable.
322. Accordingly the plaintiff’s claim is for
· $157,000 (the sum insured); and
· towing costs of $454.55 (claimable pursuant to section 3 clause 2).
323. From this he says two amounts should be deducted: the $1000 excess (in the policy) and the salvage value of $38,170 (the amount paid by Logistics) giving an amount of $118,284.55.
324. The only remaining issue between the parties was the quantum of the salvage value. Thus the defendant suggested it should be $70,000 based on a statement of Mr Planko, and also because the document supporting the salvage price was unreliable.
Salvage value
325. Mr Planko’s report of 7 October 2011 included 2 “auction return estimates” of $70,000 (from Fowles) and $45,000 (from Pickles) for the vehicle.[62]
[62] Exhibit 26, expert report of Mr Planko dated 7 October 2011, defendant court book pages 613 and 619- 620.
326. However, Mr Planko agreed that the salvage value of a vehicle will change over time, and that he would not be surprised if the vehicle eventually sold for a price lower than $70,000. Mr Planko also did not suggest that a salvage value of $34,700, provided by Pickles in May 2013, was surprising.
327. However, the defendant also suggested that a quote the plaintiff relies on to support the claimed salvage value is unreliable. It is an undated document in the name of German Prestige Pty Ltd from a “Sam” which states that the salvage price he has on the BMW M6 is $26,500.[63]
[63] Exhibit L, salvage price quotation from German Prestige Pty Ltd appearing at defendant court book page 398.
328. There was some dispute about who actually obtained this quote. Mr Bates gave evidence that he instructed his staff to seek quotations on his behalf but he never spoke with German Prestige Pty Ltd.
329. Mr Buzadzic, however, stated that German Prestige Pty Ltd was known to him, and that Sam was a worker there. He accepted that his employees could have sought the quote and provided it to Mr Bates which was consistent with the fact that the salvage quote was in fact produced under subpoena to Logistics Car Rentals.[64]
[64] Exhibit 16, copy of subpoena to Logistics Car Rentals Pty Ltd together with documents produced (14 pages).
330. It is perfectly consistent with the evidence of both men that Mr Bates’ employees went to Logistics to arrange the obtaining of a quote.
331. In any event, the quote appears to have originated from a legitimate company. Moreover, the price it provides is also consistent with the evidence of Mr Planko as well as the subsequent Pickles estimate of 14 May 2013.
332. For these reasons, I am prepared to accept the plaintiff’s claimed salvage value of $38,170 with the result that the plaintiff is entitled to judgment in the amount claimed.
CONCLUSION
333. The plaintiff is entitled to judgment in the amount of $118,284.55.
334. I will hear from the parties as to the precise form of final order.
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