Gjorgjevski v Miskos

[1999] NSWCA 170

CITATION:	GJORGJEVSKI v MISKOS [1999] NSWCA 170 revised - 22/06/99
FILE NUMBER(S):	CA 40896/97
HEARING DATE(S):	5 March 1999
JUDGMENT DATE:	5 March 1999
PARTIES :	Sonja GJORGJEVSKI v Nicholas MISKOS
JUDGMENT OF:	Mason P at 1; Beazley JA at 33; Sheppard AJA at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 110/97
LOWER COURT JUDICIAL OFFICER:	Christie DCJ

COUNSEL:	M Thompson (Appellant) M J Neil QC/G J Bellew (Respondent)
SOLICITORS:	Carroll & O'Dea (Appellant) Bruce & Stewart (Respondent)
CATCHWORDS:	Motor accident - Injury to ankle - Identification of driver of offending vehicle - Alleged failure of trial judge to consider evidence before him and to provide sufficient reasons
DECISION:	Appeal dismissed with costs

- 14 -

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40896/97

MASON P
BEAZLEY JA
SHEPPARD AJA

Friday 5 March 1999



SONJA GJORGJEVSKI v NICHOLAS MISKOS

JUDGMENT

1    MASON P: The appellant's evidence at trial was that on the morning of 13 July 1995 she was in Brown Lane, Newtown, a laneway near King Street. She had been driven there by her father to do shopping. Her house was in Sydenham. The appellant was twenty seven years old at the time. The lane was partly obstructed by a pile of plastic bread containers. The appellant got out of the vehicle to move the obstruction so that her father could park. Another vehicle started backing into the spot. The appellant said "hello, can you see me?". The driver kept reversing. He said that he owned the building and would like to park. Words continued to be exchanged as the driver kept backing, eventually bumping the appellant with his vehicle. The appellant said

"As he bumped me, I went down. As I went down, he took off. I tried to get up and I couldn't."

2    The appellant suffered a fractured right ankle. She was in a plaster cast for about two months or more. It is that injury which is the subject of the claim. 3    The second respondent is the owner of a Cortina motor vehicle, registered QFT572. It was established that the first respondent drove that vehicle from time to time. The first respondent was sued as the driver of the vehicle on the occasion in question. However it was accepted at trial, and certainly on appeal, that the case did not establish that he was the driver. The essential issue at trial was whether this was the car involved in the accident of which the appellant complained. Her case as it developed in the course of the trial was that the driver of the second respondent’s car was the first respondent's father-in-law, Mr Gatzounas. 4    On the vital issue of identity, the appellant said that when she got up after being bumped she observed that the vehicle was a "light creamy coloured car". She described it as a two-tone sedan with the roof being the darker colour. She did not know the make or model and had not seen the vehicle either before or since the accident. 5    The only description of the driver given by the appellant was a description which she gave at trial, which occurred on 25 November 1997, that is almost two and a half years after the accident. Her evidence in chief on the matter of description was as follows:

"Q: Did you have an opportunity to observe the driver?
A: Quickly, yes.
Q: What if anything did you observe about him?
A: Just maybe anywhere from 45 to 55 year old male, slightly grey.
His Honour Q: Slightly what?
A: Grey and that's about it, a bit of an accent as well. Thompson Q: Your father has an accent?
A:, I'm sorry?
Q: Your father has an accent?
A: Yes.
Q: The accent was the same accent as your father or something different?
A: A little bit different.
Q: Are you able to - don't guess the answer, but are you able to, based on the accent you heard, indicate to his Honour the origins of the accent?
A: Well I assumed it was Greek."

6    There was no evidence from the appellant when she first was called to the witness box in which she identified the first respondent as the driver. 7    In cross-examination, the appellant was confronted with inconsistent histories of the accident which, according to medical reports from her general practitioner and from a hospital, had been given. She agreed that the incident had not been reported to the police until after she had seen her solicitors. She gave an explanation which was that she had not had the registration number of the offending vehicle. In cross-examination she basically adhered to her earlier description of the driver. 8    The next witness was the appellant's father, Mr Aleksander Gjorgjevski. He corroborated his daughter's evidence about the trip to Newtown and her actions in removing the bread boxes. She was in front of the car being driven by the father, although at one stage he suggested that she could have been 50 to 200 metres ahead of him. He gave evidence that he saw the other vehicle approach, attempting to reverse into the space in front of him. He heard his daughter say "I clear up the boxes to my father to park the car" (sic). The driver said, according to him "this is my shop, my parking". Mr Gjorgjevski jumped from his car when his daughter fell. His evidence in chief in relation to identification was as follows:

"Q: What if anything did you observe about the car?
A: I just come and he already been took off. What I see only the colour. I can't see the number.
Q: What colour did you see?
A: Like a white creamy, something like that and he had the vinyl roof and the top of brown vinyl.
Q: Were you able to recognise the make or the model?
A: Model, I can't recognise it but the car I can recognise it even at night time.
Q: What sort of car was it?
A: It's a Cortina or the Ford, that is kind of car.
Q: Was it a station wagon or sedan?
A: No sedan.
Q: Had you seen that vehicle before that?
A: No."

9    He gave evidence that he saw the vehicle he had earlier seen about a month later, a date which he later indicated was August 1995. He had been back to the site in an endeavour to find the vehicle. His evidence was:

"Q: What if anything happened about a month after that?
A: After I passing there to get the car and I saw him again, he is parked in the same spot and I get the licence number and I give it to Sonja."

10    Missing a question, he was then asked:

"Q:, How sure are you that it was the same vehicle?
A: 100 per cent I am sure because I know the colour. I know the vinyl roof, I knew the colour."

11    In cross-examination, Mr Gjorgjevski said the vehicle was a Ford. He said that he had been many times back to the spot in an endeavour to find the car. He had gone there because he had heard the driver say it was "his shop and his parking". He said that it was a milkbar shop fronting "Kingsford Road Newtown how they call it" (AB38), presumably a reference to King Street. Mr Gjorgjevski agreed that there are lots of cars of the same description as the one he identified. He was confronted with the version of the accident which, according to the medical reports, had been given by his daughter but he denied that the accident occurred simply because his daughter had tripped and fallen over some boxes. 12    That was the case for the plaintiffs at trial. 13    The second respondent gave evidence. He is a service station proprietor and a director of the family company which is the first respondent and the owner of the vehicle, being the vehicle that Mr Gjorgjevski had identified in August 1995. He said that the first he knew of the incident was when he got a letter of demand from solicitors in January 1996. He said that in July 1995 the car was usually driven by his wife. The service station the family owned is at Anzac Parade Kensington. The first respondent gave evidence that he worked there seven days a week in July 1995. He said that he had no business interests in Newtown and he had never stopped in a laneway there. He denied any involvement in the accident of which the appellant had brought proceedings. He said that the only persons who drove the car, apart from himself, were his wife and, on rare occasions, his father-in-law. He agreed that his father-in-law had a Greek accent and was of Greek nationality but he could suggest no reason why the father-in-law might have been in the area driving the Cortina in July 1995. He did agree however, that the father-in-law frequented coffee shops in Newtown. 14    Mrs Miskos was called and she corroborated her husband's evidence about his working hours at the service station and the limited access that she and her father had to the Cortina. 15    Mrs Miskos's father, Mr Gatzounas, was then called. He is an invalid pensioner born in 1934. Accordingly, he would have been sixty one at the time of the accident. He denied any involvement in the accident. He said he was in Mittagong on 13 July 1995, although he was unable to provide corroborating evidence beyond saying that he went there a couple of times each month. Mr Gatzounas was familiar with George's Café, which apparently is the name of the coffee shop in question, and familiar with the lane behind it. But he said that he had never parked the Cortina there. He denied any involvement with the accident. 16    The appellant was then recalled. Having seen Mr Gatzounas in court giving evidence on that occasion, she was asked whether she believed she had seen him before. She said that was on the day of the accident. She was asked how close the profile she had seen in court fitted the man that she had observed, that she had previously described reversing the car towards her in July 1995. Her answer was

"When he turned to the right, that was more noticeable to me but he didn't have the faint moustache."

17    She said that the hair colour was the same, the cut was slightly different, the accent was "pretty similar". 18    Under cross-examination, it was put to her that she could be very much mistaken about the identification and her answer was "I'd say out of ten, maybe about a six, so I'm pretty [sure]." She was asked whether it was possible that she was wrong and she conceded "well, it's possible". 19    This was the evidence upon which his Honour had to determine two issues in the trial. The first was whether an accident had occurred at all involving a vehicle; and the second was whether, if it occurred, it was the second respondent's vehicle. It would appear that, notwithstanding the pleadings, the issue of identification of driver shifted to that of the claim that it was Mr Gatzounas rather than the claim that it was the first respondent, Mr Miskos. 20    In an ex tempore judgment given on the day the evidence and the argument was completed, his Honour Judge Christie QC found a verdict for the defendants and entered judgment accordingly, with costs. His Honour did not find it necessary to resolve the issue as to whether an accident involving a car had occurred at all. However, in a couple of occasions in his judgment he indicated some reservation about the matter, adverting to the fact that the appellant had been confronted in cross-examination with the totally different version of the incident that led to her broken ankle given by her when she first saw her GP and when she first went into hospital. The different versions were recorded in the medical reports. There was no evidence called from the doctor or the hospital staff to corroborate her explanation to the effect that the reports had mistaken that she had given them. But, as I say, his Honour did not have to resolve that matter. What is clear is that the judgment for the defendants turned upon the judge not being satisfied that the appellant was injured by a car belonging to the second respondent and driven by the first respondent or his father-in-law. 21    The amended Notice of Appeal raises in effect three grounds of challenge on the issues relating to identification. It is contended that the trial judge failed to consider the evidence before him; secondly, that he failed to have any regard to the evidence before him in identifying the second respondent's vehicle as that involved in the subject accident; and thirdly, that he erred in failing to provide sufficient reasons in his judgment as would make transparent the grounds for decision. 22    In my view, none of these grounds of appeal are made out. The grounds were elaborated in the detailed and very helpful written submissions with which we were provided. I think it can be said that everything that could be said in favour of the appellant's case was put in those submissions and in the oral submissions from counsel for the appellant. 23    Responding to the first ground, his Honour clearly did consider the evidence before him on the critical issue. I will explain why that is so when I deal with the third ground, that of lack of reasons. 24    The second ground (which charges error in failing to have any regard to evidence before the judge in identifying the second respondent's vehicle as that involved in the subject accident) focuses upon a passage in the judgment at page 6 where his Honour said:

"I have some grave reservations as to whether any car was involved in this incident at all but it is not necessary for me to decide that because there is absolutely no evidence upon which one could even draw an inference that the vehicle owned by the second defendant was the vehicle involved. The highest the plaintiff can put it is that it is possibly the vehicle. That is certainly so and it ranks almost equally with every other cream Cortina with a dark roof in the Newtown area."

25    The appellant submitted that this was a finding that there was no evidence on the vital issue of identification of vehicle. If that was the finding, then there would clearly be an error of law and the appeal would have to succeed. The first sentence that I have set out is not expressed felicitously. But I cannot read it in its context and in the context of the judgment as a whole as indicating a conclusion of no evidence. In my view, what his Honour was saying, albeit not expressed as well as one would desire, was that there was no evidence that the particular vehicle (which it was common ground belonged to the corporate defendant) was necessarily involved in the incident. Unlike most personal injury cases, here was one where the very presence at the scene of the defendant’s vehicle was a central issue. I think his Honour makes that plain by the second and third sentences of the passage that I have quoted. Later in the judgment his Honour said that the very highest one can put the plaintiff's case is moderate suspicion. And, at other places in the judgment, his Honour wrestled with the probabilities of whether or not the car that was identified in August 1995 was at the scene. He did that in the context of dealing particularly with the evidence of Mr Miskos and his father-in-law about whether or not they had been at the accident. 26    The third ground and the one that was pressed most forcefully in submissions was the submission that insufficient reasons are provided in the judgment to make transparent the grounds of decision. Counsel accepted that it is not requisite upon a trial judge to address every issue of fact debated, nor to spell out the basis, indeed even the existence, of a finding that turns significantly upon a preference for the credibility of one set of witnesses over the other. He contended nevertheless that this was a situation where the litigant was left with a sense of disturbance, based upon an inability to perceive the grounds upon which her case failed from the judgment. I do not accept that that ground has been made good. It seems to me that there are indications, albeit expressed quite briefly, of the bases upon which the plaintiff's case failed. As I read the judgment, they include the following. 27    First, the trial judge was disturbed about the inconsistent evidence as to whether or not an accident occurred. It is true that he did not need to resolve that issue, but he referred to it (at pages 19 and 20 of the Red Book) and it was material which was capable of informing his assessment of the credibility of the case advanced by the appellant and her father. 28    Secondly, his Honour as I read the judgment accepted as he was entitled to do the denials of the alleged drivers that they had been involved in any incident on the day in question. I refer to page 6 and page 8 of the judgment. That acceptance totally destroyed the plaintiff's case, which ultimately turned upon an identification which the appellant herself accepted was not in any way a certain identification. 29    Thirdly, his Honour reveals (at Red Book 17J) some concern about the credibility of the appellant's father's evidence. 30    These matters are apparent on the face of the judgment as factors which were grounds for the conclusion. What must have been uppermost in his Honour's mind was the matter to which I have already referred, namely the preference of the evidence of the two men said to have been the driver of the vehicle. It was not incumbent on his Honour to spell out the reasons why he preferred the credibility of their evidence, which he had seen and heard, over the credibility of the evidence of the appellant. There were factors, some mentioned in the judgment, others clear from the evidence to which I have adverted, which clearly were capable of supporting a high level of concern or suspicion about the credibility of the appellant's identification. I do not say that in terms of dishonesty, but in terms of reliability. Those matters must have been uppermost in his Honour's assessment of the appellant’s evidence of identification of driver and it is clear that he was impressed, and he was entitled to be impressed, with the evidence of Mr Miskos and his father-in-law. I would reject the submission that the father-in-law's credibility was undermined in some way by the fact that he was unable ultimately to corroborate in any convincing way his evidence that he was in Mittagong on the day of the alleged accident. 31    I may not have addressed every one of the particular matters of complaint covered in the written submissions, but I believe that I have adverted to the principal ones. It is my view that the judgment under appeal does not reveal a basis for rejecting the conclusion, based as it is upon ultimately a preference for the credibility of one set of witnesses over the other. 32    I would dismiss the appeal with costs.
33    BEAZLEY JA: I agree.
34    SHEPPARD AJA: I also agree. I confess that at one stage of the argument this morning I was troubled by the apparent inconsistency which there is on page 6 of the judgment between the statement by his Honour that there was absolutely no evidence upon which one could even draw an inference that the vehicle owned by the second defendant was the vehicle involved and his later approach on the same page which he says but in the face of the denials of the owners, the alleged drivers who might have had this vehicle under their control on this particular day the plaintiff cannot possibly discharge the onus of proof. It seems to me that if the matter were left on the basis of a statement by his Honour that there was no evidence, it would be clear error as the President has said. What then does one make of the statement? I think it simply has to be put aside when one reads the balance of the judgment, because it is clear that his Honour went on to consider the matter as if there were evidence. He did that in the passage to which I last referred and again on page 8 of the judgment where he says

"I prefer the evidence of the alleged driver, that is Mr Gatzounas, that he was not there, that he has no recollection, was never involved in this sort of evidence. I prefer his evidence to any other evidence in the case."

35    Counsel for the appellant complained that one did not know what other evidence was referred to but the case had been heard over the day of the judgment and the previous day. The evidence was fresh in people's minds and clearly the question was, was this the case which was involved in the accident. It was the evidence about that matter to which his Honour was referring and he preferred the evidence of Mr Gatzounas. 36    In those circumstances, I do not think after all that there is any error disclosed in his Honour's reasons and I agree that the appeal should be dismissed.
37    MASON P: The appeal is dismissed with costs.

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