Booth v Erdhal
[2022] ACTSC 200
•9 August 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Booth v Erdhal |
Citation: | [2022] ACTSC 200 |
Hearing Dates: | 27 July, 5 August 2022 |
DecisionDate: | 9 August 2022 |
Before: | Elkaim J |
Decision: | (i) Verdict and judgment for the plaintiff in the amount agreed by the parties. (ii) The defendants are to pay the plaintiff’s costs of the proceedings. (iii) I will hear the parties if any other costs order is sought. |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – motor vehicle accident – where parties dispute liability – competing versions from drivers – competing experts for each side – where parties do not dispute quantum of damages – judgment for the plaintiff |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) pt 4.2, 4.3 |
Cases Cited: | Yebdoo v Holmewood [2021] NSWCA 119 Young v Cesta-Incani & Anor [2007] NSWCA 229 |
Parties: | Matthew Booth ( Plaintiff) Benjamin Michael Erdhal ( First Defendant) AAI Limited t/as GIO Insurance (Second Defendant) |
Representation: | Counsel D Richards ( Plaintiff) S Onitiri (First and Second Defendants) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) MinterEllison ( First and Second Defendant) | |
File Number: | SC 126 of 2021 |
Elkaim J:
On 3 July 2019 the plaintiff was involved in a motor vehicle accident on Newcastle Street in Fyshwick in the ACT. The accident was between the plaintiff’s vehicle, a silver Holden Captiva and another Holden (a black station wagon). The station wagon was driven by the first defendant. The second defendant is his third-party insurer.
The plaintiff was injured in the accident. He says that his injuries were caused by the negligence of the first defendant. The plaintiff seeks damages arising from his injuries.
The quantum of the damages has been agreed between the parties, leaving liability as the issue to be decided by the Court.
The defendants admit that the accident occurred, but say that it was caused by the negligence of the plaintiff, at least wholly but otherwise, partially (contributory negligence).
The applicable laws on whether there has been a breach of a duty of care, and on the necessary causation, are contained in Part 4.2 and Part 4.3 respectively of the Civil Law (Wrongs) Act 2002 (ACT). However, in this particular matter, it was common ground that a finding of negligence would follow depending on which version I accepted. Both parties maintained a submission of negligence (by the first defendant on his version) or contributory negligence (by the plaintiff on his version) if the opposing party’s case was accepted.
In simple terms the plaintiff says that he was travelling along Newcastle Street in the left lane. He indicated to the right and moved into the right lane. He was intending to make a right-hand turn into commercial premises on the other side of the road. He says that the first defendant tried to overtake him on his right and drove into the driver’s side of his vehicle.
Based on the Defence, the first defendant says that the plaintiff did not indicate and simply attempted to make a U-turn in front of the first defendant.
The plaintiff gave evidence. He was born in 1969. At the time he owned two motor vehicles. He had decided to trade one of them in for a different vehicle which was to be given to his son, Mr Kyol Booth-Hunt. In order to finalise the transaction it was necessary for some paperwork to be completed at a car dealer’s premises.
The premises were located on Newcastle Street and can be seen on Exhibit B, opposite the Shell service station. The plaintiff said he parked his vehicle on the other side of the road, alongside the service station. He walked over the road where he met his son and his daughter-in-law, Ms Kassandra Booth-Hunt.
After completing the paperwork, the next step was for the trio to travel to Civic to arrange finance for the vehicle being purchased. In order to pick up Kyol and Kassandra, the plaintiff organised to meet them in the O’Brien AutoGlass (O’Brien) entrance (see Exhibit B). He pulled out from his parking position in front of the service station into the left lane and then into the right-hand lane.
The plaintiff said he came to a stop opposite the O’Brien car park and waited for vehicles coming in the opposite direction. He said he waited for two or three vehicles which may have taken 20 seconds or more. Once there was no oncoming traffic he commenced his turn to the right. Very soon afterwards he was struck on the driver’s side of his vehicle, more or less amidships, by the first defendant who was apparently trying to overtake across the centre line.
The photographs from page 230 of Exhibit A indicate the areas of damage to the vehicles.
It is important to note here that subject to the absence of oncoming traffic, it would not have been illegal for the first defendant to have made the overtaking manoeuvre. The lines in the middle of the road were broken.
Driving around the plaintiff on the left-hand side might have seemed a more logical path but it must be remembered that the first defendant was in the right-hand lane and there is no evidence as to the existence of traffic in the left lane.
It is also to be remembered that the plaintiff had commenced his turn because there was no oncoming traffic. It follows that, but for the plaintiff’s turn, the first defendant may have been able to safely overtake the plaintiff.
It was put to the plaintiff that he had a number of convictions for driving under the influence of alcohol. He agreed but said they had been many years ago and he had not had any alcohol for the last 10 years. It was also suggested to him that he smoked cannabis from time to time. Again he agreed.
There was however no suggestion that his manner of driving had been influenced by any substance. The attack on his credit was of no effect.
I found the plaintiff to be a believable witness. There was no apparent exaggeration or suggestion, for example of excessive speeding by the first defendant.
He was cross-examined about a police report he had completed at the Woden Police Station. In particular he was asked about the entry (on page 23 of Exhibit A) suggesting that his vehicle was “slowing” when the accident occurred. This is contrary to his history of having stopped to allow vehicles to pass from the opposite direction. On the other hand, the entry of vehicle position, namely “into driveway” is consistent with his version. His description of the type of his vehicle as a “bus” is far from correct. It is difficult to rely on the document as providing reliable corroboration of either party’s case.
The plaintiff was also asked about the description in his motor accident notification form (Exhibit A, page 4) of how the accident occurred, in particular that it does not mention him coming to a stop before commencing his right turn. The diagram however is consistent with his description of the accident in particular being hit in the middle of his vehicle.
The plaintiff’s son, Kyol Booth-Hunt gave evidence. Unfortunately, through no fault of his own, and because his father’s lawyers had not directed him to leave court, he was in the Court for a good deal of his father’s evidence.
When Mr Booth-Hunt gave evidence, his version corroborated that of his father. It was suggested to him that he had mimicked, perhaps subconsciously, his father’s evidence, in particular his statement that the plaintiff had waited for two or three cars while stationary. However unlike his father’s evidence, he added that he thought the vehicles were white. Further, in his statement to his solicitors, he referred to four vehicles having passed. The important point, in my view, is that he consistently stated his father had come to a stop and had waited for vehicles to pass from the opposite direction.
Mr Booth-Hunt was cross-examined about his apparent failure, in his proof of evidence (Exhibit C) to state that the first defendant’s vehicle was trying to overtake the plaintiff’s vehicle on the latter’s right-hand side. The cross-examination was detailed and concluded with these questions and answers, starting at Transcript page 33.40:
You wouldn’t sign a proof of evidence unless it contained everything that was important?---Yes.
And when you spoke to those solicitors you didn’t mention at all about the defendant driving onto the right-hand side of the road, did you?---Not to my memory, no.
No. Despite giving evidence just a moment ago that it was the cause of the accident and that, if asked, you would have told anybody - and I put to you it would have been the first thing you told anybody?---Yes.
And you didn’t tell them then because it’s something that’s been concocted since then to explain the damage, isn’t it?---No, it isn’t.
So, what’s your explanation for why you haven’t told the solicitors in July 2020?---I don’t know why I didn’t tell them at the time.
But you agree that you didn’t tell them?---Yes.
Mr Booth-Hunt, although a “business owner”, was far from a sophisticated witness. Although he was shown his proof of evidence, the cross-examination centred on the four cars passing before the plaintiff made his turn. It did not focus on the question of whether or not the first defendant was executing an overtaking manoeuvre. I agree with Mr Richards that paragraphs 6 and 7 of Exhibit C allow for an interpretation that Mr Booth-Hunt was inferring that the first defendant was trying to overtake the plaintiff. Paragraph 6 and 7 of Exhibit C state:
6.My father was driving very slowly, allowing oncoming traffic to pass. He allowed four cars to pass before he was able to begin making the turn.
7.As my father’s vehicle began to make the turn, I saw a black Holden wagon (with registration DCQ-26L) approach and T-bone the driver’s side of the Plaintiff’s car (“the accident”).
I agree with the submission that an overtaking manoeuvre on the right does fall within the description given in the statement. The witness’s agreement that he had not mentioned the matter remains, but I think is overcome by him not specifically being cross-examined on the meaning of paragraphs 6 and 7, a course which I accept could as easily have been done in re-examination as in cross-examination.
Nevertheless, I accept that the above quoted paragraphs from the proof of evidence allow for a version consistent with that of the plaintiff.
Another matter, but in favour of the defendants, that arises from the above quoted passages is Mr Booth-Hunt saying that his father “was driving very slowly” as opposed to being stationary while waiting for the oncoming traffic to pass.
Ultimately, I think the important part of his statement, and his oral evidence is that the plaintiff, whether stopped or moving very slowly, was waiting for vehicles travelling in the opposite direction to pass before starting his turn.
Both the plaintiff and his son were asked if they knew the whereabouts of Kassandra Booth-Hunt, presumably to ground an inference that her evidence would not have assisted the plaintiff. Both witnesses said they did not know where she was. She and Mr Booth-Hunt have separated since July 2019. I draw no inference arising from her not being called as a witness.
The first defendant gave evidence. He was born in 1970. He is the owner of a hot-rod and custom car producing business. He said the vehicle he was driving had not been modified. It was a “totally stock” standard 5.7 litre station wagon.
The first defendant, like the plaintiff, was not an overtly unreliable witness. He said that he emerged from the roundabout at about 30 km/h. He was initially in the left lane but moved into the right lane. There was a car ahead of him travelling slowly and apparently pulling to the left. He said this vehicle, obviously the plaintiff’s vehicle, suddenly made a hard turn to the right straight across his lane. He did not see any indicators. He said the impact occurred wholly within the right-hand lane.
The first defendant said that after he left the roundabout he accelerated to 50 km/h and then maintained that speed. He was not accelerating when the collision occurred. He said that although he might have attempted to apply the brakes he had not been able to slow his vehicle before the collision.
I had some concerns about the first defendant’s evidence:
(a)His original instructions placed the accident very close, but after, the second concrete median strip which can be seen in Exhibit B. This was later amended to further away from the roundabout.
(b)He said that following the collision, when both vehicles had moved to the O’Brien premises, that four people emerged from the plaintiff’s vehicle. He said they got out of “all four doors”. There are two problems with this assertion. Firstly there was only one person present in the plaintiff’s vehicle. Secondly, consistently with the photographs, the driver’s door could not be opened so that the plaintiff needed to emerge from the passenger door.
Another issue arising from the first defendant’s evidence is that he apparently told his solicitors that both before and, significantly, after the accident his vehicle had not left the right-hand lane and had certainly not crossed to the wrong side of the road. This is clearly contradicted by the photographs of the resting place of his vehicle.
However in his oral evidence the first defendant disavowed any such instruction stating that the suggestion was not accurate in respect of the movement of his vehicle after the collision. He said that his solicitors “got it wrong” (Transcript page 62.39). There was no evidence from the solicitor suggesting that a mistake in taking instructions may have been made.
The instruction to Mr Anderson, as expressed by the solicitor, contains both the statement that the first defendant’s vehicle stayed in the right-hand lane and a re-emphasis of that position.
Further, it is clear from the letter to Mr Anderson, dated 22 June 2022 (Exhibit 1, page 177) that counsel was also present when the first defendant gave his instructions. He gave them not only to the solicitor but also to counsel. The introduction to the instructions given by the first defendant is as follows:
Mr [counsel] and [solicitor] re-inspected the site of the accident with the First Defendant on 9 June 2022, to confirm his version of how the accident occurred. We were able to confirm the following:
1. …
…
8.The First Defendant’s entire vehicle remained within the right-hand lane after the collision; no part of his vehicle crossed into either the left-hand lane or the median;
(emphasis added).
Counsel, who was present when the instructions were taken from the first defendant, also appeared at the hearing. There was no suggestion from counsel that there had been any mistake made in the letter of instruction.
I think the letter of instruction is more reliable than the first defendant’s oral evidence. I had the distinct impression that he amended his evidence in order to fit the recent production of the photographs which showed his vehicle came to rest on the ‘incorrect’ side of the road.
The defendants submitted that a major flaw in the plaintiff’s case arose from the absence of any cross-examination of the first defendant suggesting that he had not seen the plaintiff ahead of him. His evidence was that he had seen the plaintiff. In addition it was pointed out that the distance from the roundabout to the point of impact was 75 metres, so that at an average speed of 40 km/h, 6.75 seconds would have elapsed in which the first defendant, on the plaintiff’s case, would not have seen the plaintiff ahead of him.
I agree that the specific suggestion of not seeing the plaintiff ahead of him was never put to the first defendant. However the plaintiff’s case was plainly put to the first defendant:
What I want to suggest to you is that you were accelerating aggressively from 30 to 50 kilometres an hour as you were exiting the roundabout or after you exited the roundabout. You were driving aggressively. Do you accept that? ---No. The speed limit is 50 kilometres an hour in that area.
You saw the plaintiff’s vehicle and you simply trying to overtake him on the right-hand side? ---No, that’s not at all what happened. (Transcript page 67.27)
The speed limit for the area was actually 60 km/h. However I do not think anything turns on the difference. There was no suggestion that the first defendant was ever travelling in excess of the speed limit. The more important point is that it was squarely put to the first defendant that he left the roundabout and quickly (aggressively) accelerated and was then confronted with the plaintiff’s vehicle ahead of him.
Ultimately, I thought the plaintiff was a more reliable witness than the first defendant. As I have pointed out there were inconsistencies in both of their versions but overall I preferred the evidence of the plaintiff, although not to an extent that would allow me, without more, to necessarily find in his favour.
The focus therefore shifted to the expert reports. Each side had an expert to provide it with support. This was not a case like Young v Cesta-Incani & Anor [2007] NSWCA 229, where a judge at first instance accepted the evidence of a plaintiff over the incontrovertible evidence of an expert retained by the defendant. An expert who gave evidence on behalf of the plaintiff was rejected because of a finding that he was biased. He had personally witnessed events leading up to the subject accident.
In this matter, each side is supported by its own independent expert who each gave reasons for favouring their respective clients.
Mr Joy was retained by the plaintiff. Dr Anderson was retained by the defendants. Although their respective areas of expertise were slightly different, I could not say that any one of them was more qualified than the other to express an opinion about the matters in issue.
There were some aspects of the instructions provided to the experts which were of concern. Mr Joy was originally retained by a letter dated 1 October 2021. The documents provided to him included “Counsel’s Site Visit comments and photographs” (Exhibit A, page 29). Mr Joy’s first report was produced on 17 December 2021. By this time he had reviewed the documents he had been sent. However, by letter dated 16 December 2021, he was asked to not “refer” to the above documents because they had been sent to him in error and were the subject of privilege.
Counsel for the defendants, in Court, called for the “Counsel’s Site Visit comments and photographs” document. The claim for privilege was maintained.
The defendants submitted that the weight of Mr Joy’s opinion was diminished.
The defendants submitted that the instruction to not refer to the documents was different to them not being taken into account. It was also pointed out that there had been no re-examination on this point leaving the Court with evidence that the privileged documents had been reviewed and not been referred to. I accept that technically the defendants’ submissions are correct, but any diminution in the weight of the report is counteracted by Mr Joy’s opinion apparently being based on the balance of the documents, and on his expertise. Further his supplementary report was prepared without any reference to the above material.
I think it would be most unusual for an expert, having been asked not to refer to particular documents, to then take them into account knowing that he might well be cross-examined on his opinion.
Dr Anderson was however significantly hampered by a series of changes to his instructions. In his first report he reached the conclusion that the plaintiff’s version was implausible because:
10.2The presence of the raised median to the north of the area in which the collision occurred presents an inconsistency in the Plaintiff’s version of events: any plausible movement to the right by the Defendant would have caused him to mount this kerb.
Dr Anderson agreed that his understanding of the location of the accident, namely very close to the concrete median strip, was the principal reason for his conclusion.
However Dr Anderson’s instructions changed, moving the collision site further away from the roundabout, and therefore the median strip, so that he had to amend his opinion. This was done through his second report, dated 5 July 2022. In this report he conceded that “the presence of the raised median now has less influence on my opinion than it did when I wrote my first report”. However he then continued:
I still regard the proximity of the median is likely to preclude the possibility that the First Defendant was trying to overtake the Plaintiff, but the revised point of collision makes a swerve into the other lane at least plausible.
Clearly the revised instructions given to Dr Anderson modified his consideration of the plaintiff’s version from implausible to “at least plausible”.
There was however a more significant alteration to his instructions. As discussed above, he was informed, in preparing his second report, that the first defendant had told his legal representatives that:
The First Defendant’s entire vehicle remained within the right-hand lane after the collision; no part of his vehicle crossed into either the left-hand lane or the median. (Exhibit 1, page 181)
Although there was no raised concrete median at the area of the collision there was a median constituted by parallel broken lines. This information allowed Dr Anderson to confirm his view that the accident had not occurred as asserted by the plaintiff.
However, the emergence of some photographs (Exhibit A, pages 230 to 233 inclusive) required yet another amendment to his opinion. It is apparent from the photographs that the first defendant’s vehicle partially came to rest on the oncoming traffic side of the road.
Dr Anderson rationalised this development by stating that following the impact the first defendant’s vehicle would have moved to its right and over the median strip. He referred back to his first report where, at [7.5] he had stated that “the collision would have induced some rotation in both the Plaintiff’s vehicle and the Defendants vehicle, bringing the side of the Defendant’s bumper into contact with the wheel arch of the Plaintiff’s vehicle”.
Dr Anderson’s referral to this rotation was suggested as a justification for his later view that the first defendant’s vehicle had moved forward, and over the median strip, following the collision.
There are four problems with this conclusion. Firstly, there is a difference between a rotation and the forward movement of the whole of a vehicle. A rotation is a movement around an axis, so that it would be unlikely that both the front and the rear of the vehicle would move together in the same direction.
Secondly, at [7.5], Dr Anderson makes no mention of the type of movement that he later suggested had occurred.
Thirdly, Dr Anderson’s attempt to disprove the plaintiff’s version through a simulation is replete with problems. He accepted that the computer’s simulated speed of the plaintiff’s vehicle making its turn at 29 km/h was likely to be excessive and that the slower the speed the more likely the first defendant’s vehicle would have been closer to the median strip. In addition, he positioned, for purposes of the simulation, the first defendant’s vehicle to the far right of the lane in order for its final resting place to be as shown in the photographs. The first defendant had never given a version of his vehicle being at the far right of the lane, as depicted in the simulation at [3.7] of Exhibit 2.
Fourthly, Dr Anderson’s final conclusion ignores the first defendant’s instructions (as I have found) that his “entire vehicle remained within the right-hand lane after the collision”.
Without any disrespect to Dr Anderson, there is an air of ‘top-down’ reasoning in his maintaining his conclusion favouring the first defendant’s version.
Mr Joy did not see any necessary implausibility arising from the plaintiff’s version. His observation of the recent photographs included the following:
The location of the glass and plastic debris in photograph 2, together with possibly some time (sic) marks near the plastic debris, confirms that the position of the black Holden as seen on the roadway in photographs one and two was very close to the location where the impact between the two vehicles occurred.
In my opinion it is likely that the black Holden had moved forward (i.e. longitudinally) a metre or so from the location where initial impact occurred, which indicates that it had begun to move onto the incorrect side of the road before collision occurred.
Mr Joy finally concluded:
The location at which the vehicles collided, as deduced from photographs 1 and 2 of the additional material provided to me are consistent with Mr Booth intending to turn into the south-eastern most driveway of Windscreens O’Brien.
Mr Joy also pointed out the angle of the front wheels of the black Holden as indicating a turn to the right. Taking into account the black Holden making an overtaking manoeuvre, to its right, and the plaintiff’s vehicle turning right, the collision being, as described by both sides as a T-bone impact, is as consistent with the plaintiff’s version as with the first defendant’s version.
I prefer the opinion of Mr Joy. I found it logical and not hampered by the changing instructions that confronted Dr Anderson.
The final matter on primary liability is the defendants’ assertion that the plaintiff’s version was unreliable because it was most unlikely that the first defendant would have attempted the overtaking manoeuvre when he had the option of going past the plaintiff in the left lane.
I have already referred to the legality of the overtaking manoeuvre and the possibility that the left lane was not available due to other traffic. In addition, I have pointed out that if it was safe for the plaintiff to make his right hand turn it could well have been safe for the first defendant to cross to the other side of the road to execute the overtaking manoeuvre.
It is not beyond the bounds of reasonable possibility that the first defendant, having exited from the roundabout and then accelerated, was suddenly confronted by the plaintiff’s vehicle ahead of him and stationary, leaving an overtaking manoeuvre as an available option.
In summary, based on my general acceptance of the plaintiff’s evidence and its confirmation as being plausible, together with my rejection of Dr Anderson’s opinion, the result is that I must find in favour of the plaintiff. As noted above, it was common ground that if I preferred the plaintiff’s version then it would follow that the first defendant had been negligent.
Because of my conclusion that I prefer the plaintiff’s version, it is not necessary for me to decide if there was any negligence on the part of the first defendant on his own version. However the defendants maintained their assertion that there was contributory negligence by the plaintiff notwithstanding my acceptance of his version. The only basis for this allegation could be that he did not indicate before commencing his right hand turn. In other words, he simply stopped in the right-hand lane posing a danger for traffic coming from behind him.
It was never put to the plaintiff that, on his version, he had not used his indicators while waiting to make his right-hand turn.
Counsel for the defendants submitted that it was not necessary for the allegation to have been put because the allegation was clearly an issue on the pleadings. I was referred to the decision of the New South Wales Court of Appeal in Yebdoo v Holmewood [2021] NSWCA 119 (Yebdoo) at [57]:
Mr Holmewood’s counsel complained at first instance and on appeal that Ms Yebdoo’s counsel did not put the substance of her case to Mr Holmewood in cross-examination. To the extent that he may not have done that, I do not consider that it resulted in any unfairness to Mr Holmewood such that the principles in Browne v Dunn (1893) 6 R 67 were infringed. Those principles do not require matters to be put in cross-examination of an opposing party where the cross-examining party’s reliance on the matters in the case is clear from the pleadings or other sources. As explained in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, the principles in Browne v Dunn do not apply if “notice has already clearly been given of the cross-examiner’s intention to rely upon” the relevant matters (at 16C-D; see also 26E-F). More recent authority is to the same effect (see Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 at [287]-[288] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [138]-[144]).
The plaintiff said that he had indicated:
Yes, keep going?---I’ve indicated to pull across the road to pull into the driveway at O’Brien’s. And started to - I’ve waited for some cars to come down the hill.
While I accept, derived from Yebdoo, that it may not have been necessary to put this suggestion of a failure to indicate to the plaintiff, there is no evidence upon which I could reach a contrary finding. The first defendant did say that the plaintiff had not indicated before commencing his U-turn. However this was a part of the first defendant’s version. It cannot be transferred across to the plaintiff’s version in isolation.
Perhaps more importantly, as I have said, I generally accept the plaintiff as a reliable historian. It follows that the allegation of contributory negligence is rejected.
Accordingly, I make the following orders:
(i)Verdict and judgment for the plaintiff in the amount agreed by the parties.
(ii)The defendants are to pay the plaintiff’s costs of the proceedings.
(iii)I will hear the parties if any other costs order is sought.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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