Calin and Pelark v Apoyan

[1999] NSWCA 146

CITATION:	CALIN & PELARK v APOYAN [1999] NSWCA 146
FILE NUMBER(S):	CA 40259/98; 40260/98
HEARING DATE(S):	18 May 1999
JUDGMENT DATE:	18 May 1999
PARTIES :	Cristina Calin and Farhad Pelark - Appellants Anthony Anto Apoyan - Respondent
JUDGMENT OF:	Handley JA at 26; Sheller JA at 1; Beazley JA at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	6061/96; 6060/96
LOWER COURT JUDICIAL OFFICER:	Judge Sinclair QC

COUNSEL:	D Knaggs [Solicitor] - Appellants R C Tonner - Respondent
SOLICITORS:	D Knaggs - Appellants Moray & Agnew - Respondent
CATCHWORDS:	MOTOR VEHICLE ACCIDENT - verdict for absent defendant - dispute as to vehicle involved - whether verdict was demonstrably unsafe
CASES CITED:	Taylor v Spencer (1965) NSWLR 961
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40259/98; 40260/98
DC 6061/96; 6060/96

HANDLEY JA
SHELLER JA
BEAZLEY JA

Tuesday, 18 May 1999

CALIN v APOYAN
PELARK v APOYAN

JUDGMENT

1 SHELLER JA: On 31 May 1995 at about midday the appellants, Farhad Pelark and Cristina Calin, were travelling in a motor vehicle driven by Mr Pelark in a westerly direction on the Parramatta Road when it collided with a telegraph pole on the footpath. Both the appellants were injured in the accident. The respondent, Anthony Anto Apoyan, was registered as the owner of a vehicle number TIZ 182, the driver of which the appellants alleged, had on the occasion that I have described, driven that vehicle in a manner which forced Mr Pelark to veer to the left and collide with the telegraph pole.
2 The appellants each began proceedings against Mr Apoyan, who they alleged to be the driver of the vehicle at the time, for damages for negligence. Both matters came before his Honour Judge Sinclair QC, who found a verdict for the defendant in each action because he said he was not satisfied on the balance of probabilities as to the identity of the motor vehicle which caused the car in which the plaintiffs were travelling to swerve to its left and collide with the telegraph pole.
3 His Honour said that the substance of Mr Pelark's evidence was that immediately before the accident occurred he was driving west along Parramatta Road in lane 2 of the three west bound lanes of traffic at a speed of about 50 to 55 kilometres an hour. From his right-hand side travelling in lane 3 a white motor vehicle crossed into his lane suddenly and without warning and caused him to swing to his left to avoid a collision into lane 1 and partly onto the footpath where his car struck a telegraph pole standing near the kerb. He was shocked by the impact with the pole but he saw the white car stop for a few seconds in lane 2 and then it continued west along Parramatta Road. Thereafter he did not see it again.
4 At the scene of the accident Mr Pelark gave a somewhat inconsistent account to the investigating police officer. He said, and I do not think there could be much doubt that this was mistakenly, that he had been travelling east along Parramatta Road but in lane 2. He also said that the other vehicle was a dark coloured sedan. He made another statement to an investigator on 16 May 1996 in which he described his own vehicle which was a 1982 Nissan Bluebird station wagon grey in colour. On that occasion he said that he thought the other car was a light colour. Ms Calin did not remember how the accident happened.
5 In support of the plaintiff's case on liability two witnesses, Mr and Mrs Compagnoni, were called. Mr Compagnoni said that he witnessed the accident. He was driving west along Parramatta Road in a green coloured Holden Commodore with his wife and family in the car. He said that before the accident occurred he was travelling in number 2 lane and that in front of him he saw a white car move to its left and push the plaintiff’s grey Bluebird onto the footpath and into the pole. He said the white car kept going after the accident and he followed it to obtain the registration number of it. The car turned left into a dead-end street near the service station on the southern side of Parramatta Road. He made a note of the registration number of the car which he gave to the police whom he called on his mobile 000, to give the details of the accident and the car that caused it. He asserted in cross-examination that he was never travelling in lane 3 before the accident and did not remember ever being in lane one. He denied that his vehicle had veered across the path of the plaintiff in lane 2. He did not return to the scene of the accident because he said it was not possible to turn right back on to Parramatta Road at that point. He was adamant that when he rang 000 he gave his name and all particulars they requested.
6 Mrs Compagnoni confirmed that she was riding as a passenger in her husband's car which she described as a dark greeny-blue Holden Commodore. In substance, her evidence was not dissimilar from that given by her husband. She said that she realised it was a severe accident but was not concerned about not returning to the scene. She said that they did not go back because they had their children in the car, they could not turn right and they had already called the police on the mobile phone. She assumed that people travelling behind those involved in the accident would have stopped.
7 Senior Constable Shoveller attended the scene of the accident. He interviewed the plaintiff, Mr Pelark, and then or later two other witnesses, Eva Gamboi and Frances Little, who were called as witnesses in the case for the defendant who gave him the car number TQV 918, the registered number of Mr Compagnoni’s car. He recorded in his notebook the statement from the plaintiff to which I have referred and the statements from, Ms Gamboi and Ms Little. He traced the owner of the vehicle whose registration was taken down by Ms Little and Ms Gamboi to Mr Compagnoni who attended the police station on Saturday morning at Constable Shoveller's request. Mr Compagnoni provided the vehicle number TIZ 182. Constable Shoveller examined Mr Compagnoni's car which was a mid green Commodore and observed there was no apparent damage to it. He confirmed that at the scene of the accident Mr Pelark said the car that forced him off the road was a dark car but that he also said he was travelling east. He confirmed the plaintiff, Mr Pelark, did appear to be a bit shaken up. When he spoke to him later on the telephone the plaintiff said “it was white I think”.
8 Ms Little, a technical support specialist, was driving her car west along Parramatta Road. She was travelling in lane 3 when she heard an impact and also a comment from her passenger, Ms Gamboi, which led her to look to her left where she saw the plaintiff's silver-grey Nissan impacted against the telegraph pole. At the time she was abreast of where the plaintiff's car had come into contact with the telegraph pole. She said she braked because she saw the rear of the plaintiff's car swerve back on to the roadway and she called out the number of the motor vehicle she saw as being responsible. She saw that motor vehicle, a dark green Commodore, standing stationary for about 10 seconds about one and a half car lengths ahead of the accident diagonally across lanes 1 and 2. She saw no other cars in the immediate vicinity. The green Commodore had its hazard lights on and then it drove off west along Parramatta road. Ms Little followed the vehicle until it pulled into the service station about 500 metres further on. She saw no white car in the vicinity at any time. She said she got the registration number of the green Commodore at the time it was stationary ahead of her on the road straddled across lanes 1 and 2. She called out to Ms Gamboi to write it down and she then read it back to check it. Her statement to the police officer was to the effect that she heard her companion say “he has hit him”, she looked and saw the Bluebird hit the pole and the back of it commenced to veer. She saw a Commodore come into lane 1, put on its hazard lights, slow down and then accelerate away from Parramatta Road to the BP service station. She said she saw Ms Gamboi a write the number in the notebook. They then drove to Burwood Road where they were able to make a U-turn and returned to the scene and give their information about the Commodore to the police. She said that before the accident the Commodore was driving quite normally in lane 2.
9 Ms Gamboi is a security officer. She confirmed that the car in which she was travelling as a passenger was travelling in the number 3 lane. She saw a green Commodore travelling in lane 2 which was about a car length ahead. The green Commodore veered to its left into the lane 1 and clipped the Bluebird. She did not hear the impact between the cars but she believed she saw it. The Bluebird hit the pole and bounced back into the number 1 lane. She did not particularly remember any of the other motor vehicles present at the time but she said she was sure the green Commodore pulled in front of the Bluebird, came to a stop and then took off west down Parramatta Road. She agreed that it turned left into the BP service station. She said that the three vehicles, the plaintiff's car in lane 1, the Commodore in lane 2, their car in lane 3 had been in the same relative position for an appreciable time as they travelled along in reasonably heavy traffic. Ms Gamboi said that the green Commodore was about one car length ahead of them in lane 2 and they were abreast of the Bluebird in lane 1. She remained quite determined that she had seen the green Commodore clip the Bluebird. She said “I think I saw it but I do not know where the impact occurred”, that is, she could not recall the point of the impact between the vehicles. She confirmed that she wrote down the registration number of the green Commodore.
10 What I have said substantially accords with and re-states what was said by the trial Judge in his judgment. The registration number taken down by Ms Gamboi and Ms Little was TQV 918, that is to say the registered number of Mr Compagnoni's car. That was the number, not as his Honour said TIZ 182, that was given to the investigating officer either at the scene of the accident or subsequently, which led the investigating officer to seek out Mr Compagnoni. Mr Compagnoni supplied the number TIZ 182.
11 His Honour said, having recounted the evidence in the way that I have described it:
"No witnesses purporting to be the driver of the small white car apparently a Suzuki Swift, were called to give evidence and the only evidence adduced to explain the absence was an affidavit of attempted service of a subpoena on Anthony Apoyan of 372 Kissing Point Road Ermington on 23 October 1997 where the process server was told that Apoyan was not known there."
12 His Honour continued:
"I have difficulty in accepting the plaintiff's evidence. One, I am satisfied he definitely told the policeman at the scene that it was green or dark coloured car that forced him off the road and then changed his mind to a white car later on. Two, further I have difficulty in accepting the evidence of Mr Compagnoni, although the wife seemed to be a reliable witness. His conduct worries me. I am satisfied that he did stop across lanes one and two with his hazard lights on although he denies this. Further, he says he followed the white car down the road to the service station, made a note of its registration number and told the operator on 000. Yet the police did not have that number until they contacted him for an interview. Three, on the other hand the two witnesses for the defendant appeared to me to be truthful and reliable witnesses. I have pondered over the conflict of evidence in this case and ultimately I have come to the conclusion that I am not satisfied on a balance of probabilities as to the identity of the motor vehicle which caused the plaintiff's car to swerve to its left and collide with the telegraph pole".
13 Accordingly, his Honour found a verdict for the defendant in each action. Each of the appellants appeals from that judgment and decision.
14 Mr Knaggs, who appears for the appellants, has provided the Court with written submissions which he developed in the course of his oral argument. The first grounds upon which he relied related to what he described as the trial Judge's failure to take into account the absence of the defendant and to realise that the person, Anthony Apoyan, whose absence was only explained by an affidavit of attempted service of a subpoena, was the defendant.
15 In developing this argument Mr Knaggs submitted that there was no sufficient material to explain the absence of the defendant and that in the absence of the defendant a mere scintilla of evidence as it was put, should have been sufficient to found a verdict for the plaintiffs. In this respect, Mr Knaggs relied upon what was said by the Full Court in Taylor v Spencer reported in (1965) NSWLR at 961, particularly in a passage in the Chief Justice's judgment at 964.
16 In addition to the material to which his Honour referred there was also evidence before the Court that attempts by the police to locate either Mr Apoyan or the car had failed. Although perhaps the paragraph that I have quoted in his Honour's judgment about the witnesses purporting to be the driver of the small white car is not entirely clear, the fact of the matter is, as his Honour observed, that no witness claimed to have been the driver of a small white car such as Mr Pelark and Mr and Mrs Compagnoni identified. There was an explanation for the absence of the defendant, Mr Apoyan. The insurer had attempted to get him to court and had been unable to do so. However, what is more to the point is that evidence was called on behalf of the defendant about the identity of the car which caused the collision and that evidence was accepted by his Honour in preference to the evidence led on behalf of the plaintiffs. It is that evidence which, it seems to me, goes to the substance of what is put and with which I will now deal. To my mind, nothing turns in this case or on these appeals upon the failure of the defendant to give evidence.
17 There are two matters in the passage which I have quoted from his Honour's judgment in which he is dealing with the difficulty he said he had in accepting the plaintiff's evidence. The first is that he said that Mr Compagnoni denied that he had stopped across lanes 1 and 2 with his hazard lights on. A reference to the evidence shows that Mr Compagnoni did not expressly deny that, though he did on more than one occasion when questioned, say that he could not recall that having occurred. It seems to me that although what his Honour said was inaccurate, it expresses some concern, having heard Mr Compagnoni, about his evidence in that regard, something his Honour no doubt took into account when weighing his evidence generally.
18 The second matter relates to the call on the number 000. His Honour said that Mr Compagnoni had said that he followed the white car down the road to the service station, made a note of its registration number and told the operator on 000 "yet the police did not have that number until they contacted him for an interview".
19 Mr Knaggs has referred us to part of the evidence of the police witness Shoveller who said, in answer to the question, “were any records kept of phone calls to 000 in respect of accidents”,
“They are kept for a short period of time. I am not too sure what that exactly is but it is only two or three months and if they are not required, like if no police officer makes any inquiries with that section where those radio tapes are, they are then just recycled but they are if someone makes an inquiry on it, they will then either arrange to hold that tape or give the officer a transcript.”
20 Mr Knaggs says, I think with some force, that the fact that the police or the investigating officer was unaware that such a call had been made did not, in the circumstances of the way in which such calls were treated, in any way detract from the credibility of Mr Compagnoni.
21 While I think there is some force in this argument, and while it is quite true that his Honour dealt with this under the general heading of his difficulty in accepting Mr Compagnoni's evidence, I regard it as no more than a comment of some surprise that the first that Constable Shoveller learned of the white car and its registration number was when he followed up on the information given to him by Ms Gamboi and Ms Little about Mr Compagnoni's motor vehicle.
22 Mr Knaggs also pointed out that Ms Gamboi in her evidence suggested that the green Commodore that she said had run the plaintiff off the road, had collided with the Sunbird, the plaintiff's car. It seems clear enough from a subsequent examination of that car that no such collision took place. Certainly there was no apparent mark that would indicate such a collision on the Sunbird. On this basis Mr Knaggs submits that his Honour should not have treated her evidence as his Honour did, as truthful and reliable. He further submits that there could be a linguistic explanation in the sense of a misunderstanding about what Mr Pelark said to Constable Shoveller about the colour of the other car. Mr Knaggs also points out that his Honour said that Mrs Compagnoni seemed to be a reliable witness and yet he said that he had difficulty in accepting the evidence of Mr Compagnoni. This it seems to me is no more than an indication of how Mrs Compagnoni gave her evidence and how she appeared in the witness box. In no sense does it disentitle his Honour's ultimate conclusion not to accept Mr and Mrs Compagnoni's evidence.
23 Mr Knaggs gathers these matters together but, as I understand his argument, with particular reliance upon the failure of the defendant to give evidence to submit that the conclusion that his Honour arrived at was demonstrably unsafe and that this Court should set aside the verdict for this reason. For my own part, I do not think as I have sought to indicate that the failure of the defendant to give evidence in any way undermines the conclusion that was reached. I accept that there is what might be described as a misunderstanding in his Honour's judgment about what Mr Compagnoni had said about the hazard lights and further misunderstanding about the way in which the police apparently treat calls received on 000. I have gone through the account of the evidence that his Honour gave in detail because to my mind it is necessary to look at his Honour's reasons for judgment as a whole.
24 Having been through them and having looked at the ultimate conclusions that his Honour came to, and bearing in mind the force with which Mr Knaggs put his submission, I am not persuaded that this is any more or less than a case in which there is a conflict between the witnesses for the plaintiffs and the witnesses for the defendant about the identity of the car, the behaviour of which led to Mr Pelark swerving off the road. The plaintiffs bore the onus of satisfying his Honour on the probabilities that it was the defendant and the defendant's car which caused the accident. His Honour was not so satisfied. His failure to be satisfied depended upon the evidence of the two witnesses for the defendant who identified a different car as the offending car. His Honour said that he regarded them as truthful and reliable witnesses. On that basis, it seems to me that the conclusion that his Honour came to was one open to him and there is no basis upon which this Court can interfere with that conclusion.
25 Accordingly, I would propose that the appeals be dismissed with costs.
26 HANDLEY JA: I agree.
27 BEAZLEY JA: I agree.

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