Gouvoussis v De Luca; De Luca v Gouvoussis (Civil Dispute)

[2019] ACAT 106

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOUVOUSSIS V DE LUCA; DE LUCA v GOUVOUSSIS (Civil Dispute) [2019] ACAT 106

XD 1461/2018

XD 1728/2018

Catchwords:  CIVIL DISPUTE – motor vehicle collision – balance of probabilities – credibility of witnesses – duty of care

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 15

Tribunal:        Senior Member J Lennard

Date of Orders:  28 November 2019

Date of Reasons for Decision:        28 November 2019AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL         )          XD 1461/2018

BETWEEN:

NICK GOUVOUSSIS

Applicant

AND:

ANTHONY DE LUCA

Respondent

TRIBUNAL:  Senior Member J Lennard

DATE:                   28 November 2019

ORDER

The Tribunal orders that:

1.           The application is dismissed

………………………………..

Senior Member J Lennard

AUSTRALIAN CAPITAL TERRITORY   )

CIVIL & ADMINISTRATIVE TRIBUNAL         )          XD 1728/2018

BETWEEN:

ANTHONY DE LUCA

Applicant

AND:

VICKIE GOUVOUSSIS

Respondent

TRIBUNAL:  Senior Member J Lennard

DATE:                   28 November 2019

ORDER

The Tribunal orders that:

1.           The respondent shall pay to the applicant the amount of $358 within seven days of the date of this order.

………………………………..

Senior Member J Lennard

REASONS FOR DECISION

1.           On 20 May 2018 a collision between two vehicles occurred at the intersection of Coronation Drive and Commonwealth Avenue, in the ACT. The vehicles were a motor car driven by Vickie Gouvoussis, owned by her spouse, and a motorcycle ridden and owned by Anthony De Luca. Each vehicle sustained damage in the collision. Each driver alleges that the collision was caused by the negligent actions of the other.

2.           The owner of each vehicle has made application for damages for negligence. Each owner was represented by legal practitioners on behalf of their respective insurance companies.

3. ACAT has jurisdiction to determine civil disputes, including applications for damages for negligence pursuant to section 15 of the ACT Civil and Administrative Tribunal Act 2008.

4.           The Tribunal received the following written evidence:

(a) Witness statement from Anthony De Luca.

(b) A statement by an assessor for QBE insurance relating to the damage sustained by the motorcycle. This statement included photos and quotes for repairs to the motorcycle.

(c) Witness statement from Vickie Gouvoussis.

(d) AFP Crash Report by Vickie Gouvoussis.

(e) In relation to an insurance claim made to AAMI, a report by Vickie Gouvoussis. This report included various maps and diagrams describing the collision, photos and assessor’s report and quotes for repairs to the vehicle driven by Vickie Gouvoussis.

5.           Anthony De Luca and Vickie Gouvoussis each gave oral evidence at the hearing. Each referred to the maps, diagrams and photos before the Tribunal. An aerial view of the collision site is set out below.

6.           Vickie Gouvoussis gave evidence that she was the driver of the motor vehicle owned by her husband. She says her vehicle was stationary on Coronation Drive, waiting to turn left on the Commonwealth Avenue; her vehicle was behind another car which had stopped before the pedestrian crossing. This position is indicated in the aerial view above by the red circle. The position of Anthony De Luca’s motorcycle, as Ms Gouvoussis says she observed it, is indicated by the green circle. She states in her insurance claim to AAMI that “there was a motorbike on the right lane as I was stationary in my car waiting for the car ahead to turn left, and when that car went I could be able to turn left, my car was stationary a motorbike decided to change from the right lane into the left lane where I was positioned stationary with the left blinker on.” She further stated that “he turned his motorcycle and leaned straight into the right-hand side of my car into the driver’s front door where I was stationary. He dented the front driver’s door and then when he realised he quickly turned his handlebars and scratched my door and front right of the car.”

7.           Ms Gouvoussis gave oral evidence that she observed a car and a motorcycle in the adjacent right-hand lane. She stated:

My window was down, I recall, and as I looked to the right, a motorbike – the motorbike that was already stationary behind the other car just decided to turn left into my car, and I'm, like, sort of bipping my horn, yelling at him, and he just came straight into the right-hand side door.

In her evidence, she stated:

I could see him clearly from my window. He came straight into my right-hand side door of my car. I could see him. I'm, like, going like this, bipping the horn. He just straightened up. He didn't fall. He was going fast because he decided to change lanes obviously and had not seen me.

8.           A bit later in her evidence, Ms Gouvoussis said when asked to describe whether motorcycle had collided with her vehicle, “on the right-hand side of my car. It came straight to the right side of my car and came up and then he fixed his handles. He did not fall off the motorbike at any stage because he was not going fast, and he just scratched all the right-hand side of my car.”

9.           The photos provided show damage to the driver’s side of the car from the rear panel to the front panel, being a series of dents and scratches at the same height along the vehicle. The AAMI assessor’s Summary Report describes the reported damage as: “d/s front door – big dent, a long scratch caused by his handle and foot rest”. The quote for repair from Edwards Spray Centre was before the Tribunal and detailed repairs to the rear and front of the right-hand side of the vehicle. No explanation was given by Ms Gouvoussis as to how the areas other than the driver’s door came to be damaged. There was no evidence as to the cause of the extensive damage, nor of how both the foot rest and handle of the motorcycle caused the scratches and dents. The extent and location of the damage does not appear to accord with Ms Gouvoussis’ description of the collision.

10.         Mr De Luca gave evidence. His evidence as to the location of his motorcycle and the cause of the collision was not in accord with that of Ms Gouvoussis. Mr De Luca gave evidence that he had turned right from Langton Crescent into Queen Victoria Terrace intending to turn left from Queen Victoria Terrace onto Commonwealth Ave. He stated that he was travelling on the right side of the left turning lane, at approximately 20 kms/hour and that there were no other vehicles in the lane. In his witness statement he said:

as I leaned into the corner to make the left turn, suddenly a BMW vehicle …approached me from behind. …the BMW …was behind my left shoulder when I first saw it. …The BMW attempted to drive between my bike and the kerb on the left. The front right of the BMW collided with my bike’s oggy knob.

11.         The evidence before the tribunal shows that the motorcycle was inspected, and that the only damage to the motorcycle was to the oggy knob, and there was no damage to the handlebar.

12.         There is little correspondence between the evidence of each party, except to say that the front driver’s side of the car was damaged in the collision. The Tribunal has received no explanation from Ms Gouvoussis as to why the quoted repairs, and indeed the amount sought, includes repairs to damage in the rear of the vehicle. I note that there is no direct evidence provided from either the insurance assessors or the repairers as to the details of the damage or the likely cause of the damage to the car.

13.         Ms Gouvoussis’ evidence was fairly consistent across documents and oral evidence, although with some discrepancies between versions. The Tribunal is not able to determine that these discrepancies have arisen solely from the effluxion of time. However, those discrepancies, plus Ms Gouvoussis’ belligerent and evasive attitude during cross examination weigh against the Tribunal accepting her evidence as truthful. I note that on 18 occasions during cross examination Ms Gouvoussis answered questions with the phrase ‘no comment’. The applicant in matter XD 1461/2018 has failed to establish on the balance of probabilities that the collision was caused by Mr De Luca riding his motorcycle across lanes and colliding with the front of the car driven by Ms Gouvoussis. That application is dismissed.

14.         Mr De Luca was clear, consistent and logical in both his written and oral evidence. The Tribunal is of the opinion that he was a witness of truth. In particular, the Tribunal notes that Mr De Luca gave evidence that there was damage to the front of the motor vehicle and minor damage to the motorcycle. Ms Gouvoussis’ evidence was that the damage to her car was caused by the footrest and handle of the motorcycle. There is no evidence to support this. There is evidence before the tribunal that the only damage to the motorcycle, was indeed minor and was to the oggy bar.

15.         I am satisfied on the balance of probabilities, based on the evidence before me that the collision occurred when the car driven by Ms Gouvoussis attempted to ‘undertake’ the motorcycle being ridden by Mr De Luca. I am satisfied are the evidence before me that Mr De Luca was riding on the right-hand side of the left turning lane and that the vehicle driven by Ms Gouvoussis came from behind in the same lane.

16.         I am satisfied that the negligence of Ms Gouvoussis caused the collision. Ms Gouvoussis owed a duty of care to the respondent, that duty of care included a duty to keep a proper lookout for other vehicles on the road and to drive in a safe manner. In breach of that duty she failed to keep a proper lookout and did not drive in a manner so as to avoid other users. The damage to the respondent’s motorcycle was caused by the impact of the collision.

………………………………..

Senior Member J Lennard

HEARING DETAILS

FILE NUMBER:

XD 1461/2018 and XD 1728/2018

PARTIES, APPLICANT:

Nick and Vickie Gouvoussis

PARTIES, RESPONDENT:

Anthony De Luca

COUNSEL APPEARING FOR MR DE LUCA

Mrs Nelson

COUNSEL APPEARING FOR THE GOUVOUSSIS’

N/A

SOLICITORS FOR MR DE LUCA

Hoyle Da Silva Lawyers

SOLICITORS FOR THE GOUVOUSSIS’

Moray & Agnew

TRIBUNAL MEMBERS:

Senior Member J Lennard

DATES OF HEARING:

23 August 2019