Hussein v Insurance Manufacturers of Australia Ltd - [2016] VMC 26

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
CIVIL DIVISION F10225088

BETWEEN:

HUSSEIN HUSSEIN Plaintiff

-and-

INSURANCE MANUFACTURERS OF AUSTRALIA Defendant

MAGISTRATE: GINNANE

WHERE HEARD: MELBOURNE

DATE OF DECISION: 21 DECEMBER 2016

CASE MAY BE CITED AS: HUSSEIN v INSURANCE MANUFACTURERS OF AUSTRALIA LTD
MEDIUM NEUTRAL CITATION: [2016] VMC026

APPEARANCES:Counsel Solicitors

For the Plaintiff Mr N Kenyon RS Chase Lawyers

For the Defendant Mr M Purvis Hall & Wilcox Lawyers

Catchwords: denial of liability of insurance – policy avoided due to dishonesty in answers given in the administration of claim – motor vehicle collision – failure of airbags to deploy – technical evidence – whether plaintiff discharged burden of proof – findings of dishonesty- failure to adduce relevant witness evidence – failures unexplained – principles governing adverse inferences – defendant’s expert evidence significant – plaintiff’s claim dismissed

REASONS FOR DECISION

HIS HONOUR

Introduction

This proceeding concerns a denial of liability by the defendant to indemnify the plaintiff for damages allegedly sustained as a result of a motor vehicle collision that occurred on 6 July 2014. The plaintiff’s proceeding was commenced by way of Complaint on 21 January 2015 and the defendant’s Notice of Defence was filed on 18 February 2015.
The plaintiff held an Agreed Value Policy of insurance (the policy) for the sum of $35,350 with an excess of $625.00. The policy was renewed for the period 1 October 2013 to 30 September 2014. When certain adjustments are factored it was not contested by the defendant that the amount of the plaintiff’s claim would amount to $34,725.00 if his proceeding succeeded.
The defendant denies liability under the policy and alleges that the plaintiff engaged in dishonesty in connection with the claim made under the policy. Although an allegation of fraud was not pleaded in the notice of defence[1], fraud was alleged in correspondence dated 23 October 2014[2] to the plaintiff.

[1] In any event there is no different standard of proof of an allegation of fraud than there is of allegations which do not involve grave adverse implications; but the nature of the allegation is important and should be dealt with in accordance with the principle expressed by Dixon J in Briginshaw: see Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366 [at para 30 and 31]

[2] Ex P5

In any event the plaintiff was accused of engaging in dishonesty in a number of respects the effect of which the defendant claims entitled it to refuse the claim and for its liability to be reduced to nil pursuant to s 54 (1) of the Insurance Contracts Act (1984).
Specifically the defendant pleaded in its notice of defence [at paragraph 9]:

The plaintiff has failed to discharge is onus of establishing that the plaintiff’s vehicle was damaged as a consequence of an accidental motor vehicle collision occurring in the manner described by the plaintiff.

PARTICULARS

(a) The defendant is entitled to refuse a claim or cancel the policy, or do both, in the event the plaintiff was not truthful or frank in any statement he made in connection with a claim on the policy

PARTICULARS

The term is written and contained on page 19 of the policy wording.
(b) The defendant may not pay a claim in full or at all in the event the plaintiff does not cooperate fully with the defendant in connection with a claim on the policy.
PARTICULARS

The term is written and contained on page 19 of the policy wording.

(c) The defendant is entitled to refuse to pay a claim if the plaintiff failed to act towards the defendant in respect of any matter arising under or in relation to the policy with utmost good faith.
PARTICULARS

The term is implied by operation of section 13 of the Act.

10. …
11. The defendant is entitled to deny indemnity on the basis of the plaintiff made numerous false statements in connection with the claim.
12. The defendant is entitled to deny indemnity in respect of the plaintiff’s claim on the basis that the plaintiff has failed to act towards the defendant in accordance with his obligation of utmost good faith.
13. The defendant is entitled to deny indemnity for the claim on the basis that the plaintiff failed to cooperate and to give the plaintiff all reasonable help and information requested.

The plaintiff carries the burden of proving on the balance of probabilities that an insured event took place. The defendant has the burden of establishing the facts giving rise to the exclusion pursuant to the policy. Because the defendant seeks to avoid the policy based on an allegation of dishonesty by the giving of false answers to the defendant by the plaintiff in the administration of the claim, it has a high burden approximating that stated by Dixon J in Briginshaw v Briginshaw[3] and more recently by the High Court in Neat Holdings[4].

The plaintiff’s account of events

[3] (1938) 60 CLR 336

[4] (1992) 110 ALR 449 at 449-450

The plaintiff said on 6 July 2014 the holy day of Ramadan was due to conclude and he went to see a friend in Reservoir. He said he volunteered to go to “McDonalds” and purchase food to bring back to his friend’s house and to share in the celebration of an end to fasting. He said the McDonalds was about 10 to 15 minutes away from his friend’s home. He said he came to High Street and crossed the train line at Keon Park. He said he was alone in the car and travelling in the left of three lanes on Mahoney’s Road. He believed the speed limit was 70 kph. He estimated he was driving a little under 70 kph. He said there were 2 or 3 cars ahead of him. The vehicle in front of him slowed. He said he decided to overtake. He said he looked to his right. He moved out of his lane. He saw a car. He pulled back into line at which time the car in front of him was stopped. He said, “We had an accident. My car hit the middle and the other car was mostly to the right side and rear”. He said he could not restart his engine. He said he was angry. He said the driver of the other car[5] explained matters by blaming the driver of the vehicle in front of him. The plaintiff said licence details were exchanged. He described the other driver as skinny with hair that was parted on the left. He was white and between 20 and 30 years of age. The plaintiff said he telephoned his insurer. They told him they would organise a tow. The plaintiff said he phoned his brother-in-law to come and collect him. A tow truck eventually arrived and the plaintiff’s car was towed away. He said his insurer gave him a replacement car for about two weeks. After that he spent the next two months or more chasing the insurer to determine the progress of his claim. He was told there were delays because his claim had yet to be assessed. He said that after three months “I telephoned again”. He said he spoke to someone who told him that he was being placed under investigation. He said a lady named Melanie McDougall came to his house and he was interviewed and he answered her questions. The interview was transcribed. Mr Kenyon for the plaintiff objected to the admission of the transcript of the interview. I heard his objection and gave my reasons by way of an oral ruling to accept the transcript. When I inquired of Mr Kenyon why it would have been necessary for the defendant to call the investigator, he said “in order to defend her investigation”. With respect to counsel the submission was misconceived the task of the court.

[5] Although he did not testify the other driver was identified as a Mr Fagnani

The plaintiff told the investigator that the airbags on the car did not deploy. He said he had been wearing his seatbelt. He said the car had not been under finance and he was not in debt. He said he had never advertised the car for sale and it was “never for sale”.
The plaintiff said in his testimony that his insurer returned the car to him. He said it sat at his house for a couple of months. He then said he sold it because he did not have the money to repair it.
The plaintiff said he had had the car serviced regularly by “Top Tune Motors”. He said he was not aware of any electrical or other faults with the car.
The plaintiff said the name of the owner of the car he struck from behind was Mr Fagnini who sent him a bill for repairs to his car. A Magistrates’ Court Complaint was issued against him by Mr Fagnani. The RACV declined to indemnify him and so he placed the claim in the hands of his solicitors I was not told what had happened to that proceeding.
The plaintiff said he had always wanted his car repaired. The plaintiff described the car as his “dream”. He said “this was my favourite car”.
The plaintiff said he is a recipient of a Newstart allowance. He said he purchased the vehicle from his brother in law. He said he had been living with his sister and his brother in law for about 7 years.
The plaintiff’s evidence concerning the purchase of the car was uncertain and inconsistent. The defendant placed considerable store in the unsatisfactory nature of the plaintiff’s evidence relating to his financial affairs.
The plaintiff said he purchased the car from his brother in law for “over $30,000”. He said that following the purchase he bought extras such as a set of rims for an amount in excess of $4,000 and a navigation system and an alarm all up for “about $3,500”. He said he bought a hardtop cover for $1,800.
He said it took about 8 or 9 months to pay his brother-in-law for the vehicle. He said his mobile phone number is a prepaid number 0412 172 384. He said his other mobile service phone number to which reference was made belonged to his sister-in-law Rashid Hussein.
He said he did not know the driver of the BMW prior to the accident and had not spoken to him since the accident.

Credit

I note that the defendant put many issues against the defendant for the purpose of testing his credibility and his honesty. The plaintiff was asked about a woman identified as Bronwyn Price and whether he had assisted her buy a car. He described her as a friend of his brother-in-law. He was asked if he had helped her arrange to have a written off vehicle registered for road use. He said he could not remember. He was asked about the registration plate DCH 2N1. He said that was the registration number as on his utility and he said he liked the number plate and arranged for it. The defendant suggested to the plaintiff that he was very familiar with the process of purchasing at auctions vehicles that had been involved in accidents. The plaintiff did not agree. The evidence suggests perhaps some knowledge by the plaintiff but certainly not that it was his modus operandi or business.
Mr Purvis questioned the plaintiff about a “VicRoad Vehicle Identity Validation Certificate” and whether he understood the need to obtain the same when seeking to put a vehicle back on the road after it had been written off as un-roadworthy. Mr Purvis suggested that the plaintiff had arranged for the testing of the Commodore to get it back on road in February 2012 and had presented the vehicle to VicRoads for testing. “No. Maybe I helped him” he said, referring to some assistance he might have provided to his brother in law. He acknowledged his signature as appearing on the relevant form. He explained it by saying, “He is my brother in law of course I will help him”.
The plaintiff had said in his evidence in chief that he knew nothing about the provenance of the Commodore. The evidence produced by the defendant suggests otherwise. I am satisfied that the plaintiff had a role to play in facilitating the purchase of the vehicle that came to be registered in his brother-in-law’s name and that he said he purchased from him and paid off over time and that came to be involved in the accident on 6 July 2014.
There are a substantial number of irregularities in the plaintiff’s evidence. The price the plaintiff claimed he paid his brother in law for the vehicle is significantly different from the market value of the vehicle expressed to Vic Roads for the purpose of calculating stamp duty. The price is also different again from the agreed value that the vehicle was insured for with the defendant. As to the price the plaintiff said he paid his brother in law for the car his evidence varied between $27,000 and $30,000. There was no evidence to corroborate the purchase price paid by the plaintiff. There was no evidence to corroborate any payments made by the plaintiff to his brother in law for the purchase of the car.
The plaintiff sought to meet the attack made by the plaintiff on his character and credibility by pointing out that he has no criminal convictions and that so far as insurance claims are concerned, the only other accident involving a motor vehicle the subject of a claim he was involved with was one that occurred whilst driving a vehicle registered to his sister and for which in any event liability was accepted.
For the purpose of calling into question the plaintiff’s evidence that he was able to make purchases of car accessories and in fact repay his brother in law the purchase price of the car, the defendant pointed out that the plaintiff was at all relevant times a recipient of a Centrelink benefit in the form of a Newstart Allowance which at the relevant time of the plaintiff’s purchase of the car was less than $590 per fortnight. The defendant took the plaintiff to a number of his bank statements that identified withdrawals of sums of money which on their face are not reconcilable with the plaintiff’s limited income.
The plaintiff said he had pleaded with the defendant for his car to be repaired. He denied only deciding to sell the car after becoming aware that the insurer had proposed it could be repaired for approximately $11,000 as opposed to paying out the plaintiff its agreed value. The plaintiff denied this. Mr Kenyon contended this was irrelevant as the defendant had by this stage denied the policy. I agree the issue has no probative work to do in the determination of the plaintiff’s claim.
The plaintiff said the agreed value amount of the policy was suggested by the insurer’s agent when he took out the policy and had disclosed the price paid for the vehicle together with accessories. I have no reason to doubt the plaintiff’s evidence about the conversation. However, the fact of the defendant’s agent suggesting an amount based on figures told to him still begs the question of the veracity of the purchase costs.
As to the question of the plaintiff’s financial wherewithal he was asked by Mr Purvis if he agreed that his Newstart allowance was less than $600.00 a fortnight. He said he “didn’t know”. He said he did not have to pay much rent although in his record of interview he said that he paid $100 or $150 per week. He explained this discrepancy by testifying that the interviewer pressed him to state an amount. He said, “She pushed me to state some amount and so I did”. Elsewhere in his evidence he said that sometimes his family would not take rent from him and that on some occasions they would give him money.
The plaintiff was asked about his living expenses such as rent, mobile phone and petrol. He said he was helped by family who would either waive rent of provide him cash assistance. The plaintiff’s brother in law was not called to give evidence. His sister was not called.
In addition to being cross examined about the ongoing costs of maintaining his car the plaintiff was asked about his entertaining expenses and general living expenses. It was suggested to him that he managed to gamble despite his limited income. He said “maybe $50 every fortnight if going out”. He was asked if knew about an online gambling site and he said “this is not me” and the account in his name was opened his name only. It appears that on 23 May 2014 the plaintiff withdrew over $350 at “Club Italia”. He said the withdrawal was for a friend who repaid him.
Does an examination of the financial particulars of the plaintiff give rise to an inference that the plaintiff was not involved in the accident as described by him? Of itself, it does not. However, it may be probative evidence that enables an adverse inference to be drawn in appropriate circumstances. Of course, the plaintiff’s hesitancy and his discordant evidence about his financial circumstances and his reluctance to admit knowledge of the purchase or the participation in the purchase of vehicles that might have been involved in motor vehicle accidents and subsequently registered for road use may be explicable for reasons unrelated to any dishonesty stemming from the alleged accident on 6 July 2014 and the claim made on his policy.
It was evident that the Holden vehicle was purchased from Pickles Auctions. It was also evident that the car was bought by the plaintiff’s brother in law even though the plaintiff said, “I cannot remember”. Mr Purvis showed the plaintiff the application to register the vehicle dated 24 February 2012. The plaintiff was asked if the form contained his handwriting, and he said it did not, although he agreed that it was his signature as the operator “but on behalf of his brother in law”. He accepted that his earlier answer that he “got the car” in late 2011 was wrong.
Mr Purvis asked the plaintiff if he was aware that a purchaser of a vehicle is required to pay stamp duty. The plaintiff said, “I don’t know”. Mr Purvis referred the plaintiff to the fact that the Stamp Duty is payable according to the declared value of a car, which in this case was $15,000, despite the plaintiff saying that the purchase price he paid his brother in law was $30,000. Mr Purvis suggested to the plaintiff that he decided to put a false amount on the purchase price to reduce the stamp duty. The plaintiff said, “My brother filled it out”. The plaintiff consistently denied that he had paid less than $30,000 for the vehicle. He said that the calculations on the VicRoads document was not his hand writing and he was not responsible for it.
The plaintiff was asked if documents existed to corroborate his purchase of the car from his brother in law such as receipts for the repayments he made. The plaintiff said he did not need receipts for the money paid his brother in law. He said he repaid his brother in law progressively. He added, “Family doesn’t need that” when asked about the existence of receipts. He said he, “I paid brother in law cash”. “I had some money saved”. The plaintiff could not remember how much money he had saved. The plaintiff said it took about 8 or 9 months to pay off his brother-in-law.
The record of interview of the plaintiff participated in as part of the investigation of the claim is relevant on the question of the existence of receipts. The plaintiff was asked in the interview whether he had a receipt for the purchase of the car. He said that of course he was given a receipt because he had given his brother in law the money for the car but he did not know where he had put it. He testified in Court however that he “did not need to get a receipt because brother in law was family”. When asked about this apparent anomaly by Mr Purvis the plaintiff said he had intended to say in answer to the question by the investigator was that he could supply a receipt if one was required. I do not accept the plaintiff misunderstood the question asked of him in the interview or that he misunderstood the question concerning the provision of a receipt when asked by counsel.
When the plaintiff was interviewed he was asked how much he had paid for the car. He said he could not remember. He then said he paid about $29,300 and then thought this was wrong and again stated that he was not sure but perhaps an amount between $27,000 and $29,000. This is inconsistent with his evidence in chief that he paid more than $30,000.
The plaintiff also gave discordant evidence about the costs of the after purchase accessories. He told the investigator that the rims cost $5,000 but in Court his evidence was that he paid $4,000. As to which amount was correct or from whom they were purchased the plaintiff said “I can’t remember”. He denied that $4,000 or $5,000 was a lot of money to spend despite his only income at the time being a Newstart Allowance. He said he bought the hardtop for the car but also could not remember where the purchase was made. He said he bought an alarm for $2,500. He said “someone put it” in but he could not say where it was installed. When asked by Mr Purvis if he could recall the name of the installer, he said he could not, and could say only that “it was installed by someone who is an electrician.”

I found many of the answers given by the plaintiff to straightforward questions asked of him to be disingenuous and on occasions evasive. I found his recourse to an absence of memory unpersuasive and on the whole I have concluded that on matters upon which there was a substantial conflict of evidence I have not accepted the uncorroborated evidence of the plaintiff.
The plaintiff was unable to say why he had left the car registered in his brother in law’s name.
The plaintiff said that he sold the car about three months ago to a friend by the name of Muhammad Hayek for $3,000. He was a private buyer.
The plaintiff said that it was only about two months ago that he heard about the RACV’s opinion that the car was capable of being repaired for about $11,000.
The plaintiff rejected the suggestion by Mr Purvis that there may have been a warning light visible on the dashboard of the car. He said that, “no warning lights on the car came on. I wouldn’t drive the car if there had been warning lights”. As to the condition of his vehicle generally, the plaintiff said he had it serviced by Top Tune Motors every 5,000 km. The plaintiff said there was a log book that recorded the servicing of the car but the service records went with the sale of the car to Mr Hyek.
The plaintiff was taken to the events of the accident that occurred on 6 July 2014. His phone records show two calls made to the RACV that day one shortly after the accident and one later in the afternoon and in between a variety of calls were made. Mr Purvis suggested to the plaintiff that it was peculiar that he did not phone his friend to tell him he would not be coming back with food from McDonalds. That gentleman was interviewed as part of the defendant’s investigation and apparently said he had not spoken to the plaintiff for some days after the collision. Optus records for the plaintiff’s mobile telephone records for the day of accident were produced but they were not probative and I am not satisfied that I should make anything from them one way or the other.
The plaintiff was directed again to the particulars of the accident. He said the carriageway was three lanes each way and divided by a grass median strip. He said he wanted to overtake the car ahead of him. He said “I was doing little bit under 70. I saw his rear stop lights come on. I tried to pull back in. The car in front was moving when I moved out. It had stopped when I came back in. I was still doing a bit under 70”. He described the collision as “a big hit”.
Mr Purvis directly confronted the plaintiff with the allegation that the collision occurred whilst his vehicle was stationary and the engine turned off and that the BMW reversed into the plaintiff stationary car. The plaintiff denied these allegations[6].

[6] Due to an absence of direct evidence the defendant’s allegations about how the damage was caused varied and contemplated that the plaintiff’s vehicle was driven into or reversed into by a vehicle other than the BMW but the common thesis was that the ignition of the plaintiff’s vehicle was off based on the expert evidence it adduced through Mr Edgerton.

Before approaching the technical expert evidence that was adduced by the parties in the proceeding it is appropriate to express in these reasons as I did with counsel in the course of final submissions that I have approached the allegation of plaintiff having staged the accident with a degree of rigour. It is by no means a straightforward construction of events that the defendant advanced in order to conclude that the vehicle was not involved in an insurable event. For example, at one level, the plaintiff did not impress me as a person with the necessary nous to engage in a complicated charade which lies at the heart of the defendant’s rejection of the plaintiff’s claim. I must be satisfied that the accident did not occur where the plaintiff alleged it did. Whether he alone or in conjunction with some other person or persons caused damage to his car at some other place and presented it at the scene on the date in question is subsidiary. If however I reach that degree of satisfaction it is not necessary that I need be satisfied if the BMW was at the scene or not.
The manner in which the defendant ultimately argued the point was limited and was to the effect that I need only be satisfied that the accident did not occur as claimed by the plaintiff. That analysis is correct in the sense that in order for the defendant to avoid the policy it is unnecessary for it to establish how else the damage could have been caused so long as it was not caused as an insurable event. Nonetheless, determining the probability that the accident did not occur as the plaintiff claimed dictates a consideration by me of the relative probabilities of it occurring as a staged event which underpinned the defendant’s conduct of the proceeding. For example, the defendant put to the plaintiff such matters as that the collision occurred somewhere else and the car was moved to the place on Mahoney’s Road where the collision was said to have occurred and the vehicle was then collected by the tow after the plaintiff made the calls to the insurer. It was also suggested that the plaintiff had failed to identify the grass median strip that divided the north and south bound lanes of traffic when the claim was investigated. These were matters of the type upon which the plaintiff was challenged as to the honesty of his account in the making of the claim on his insurer.
The plaintiff and defendant each called loss assessors and in relation to the failure of the vehicle to deploy airbags, each expressed surprise that in an accident of the type depicted and based on its apparent severity the airbags had not deployed. However, each loss assessor also testified of being aware of circumstances in which anomalies occurred in terms of the speed or force at which airbags have been deployed. That evidence of course amounts to no more than anecdotal evidence and is not technical expert opinion evidence.
As already mentioned, the happening of the collision and the plaintiff’s account was the subject of considerable testing in evidence by the defendant. He said the speed limit on the relevant stretch of Mahoney’s Road was 70 km/h. He could not say if the speed zone was 80 km/h before the train line. He said he was in left lane of 3 lanes. He said “I saw red stop lights on the car in front of me”. He said he did not see the BMW coming to a stop. He said he looked to his right and I tried to overtake the BMW and “and saw car next to me so I needed to pull back in and found it had stopped. We then hit”. He could not recall if his foot was on the brake. He agreed he was at the point of impact still doing just “a little below 70 kph”. It was suggested that the hit was “a big hit” and he agreed. The plaintiff said he did not suffer any injury. However, in the record of interview when asked if he suffered any injuries he said his neck was hurting “just a little bit and by the second day I was alright”. He explained this by saying he understood this to be a question about whether he had suffered any ongoing injury. I accept that as an explicable explanation.
The plaintiff was shown photographs numbered 3 to 12 depicting the front damage to his vehicle and included as part of an expert report of Dr George Rechnitzer whose opinion was relied on by the plaintiff. The plaintiff was asked if he was aware that the strongest part of the vehicle was the chassis rails. He said he was. Both chassis rails of the plaintiff’s car were dented in the collision as evident from photographs.
The plaintiff was asked about the operation of the airbags and their failure to deploy. He could not explain why the airbags did not deploy. The plaintiff was told that the defendant’s expert Mr Edgerton had reported that airbags only operate when the car’s ignition is on. The plaintiff said all he could offer by way of explanation was that there was something wrong with the airbags. The defendant suggested to the plaintiff that the accident occurred whilst the vehicle was stopped with the ignition off. The plaintiff denied this was the case. He said that people had come up to him after the accident to offer him assistance. However, when they realised there were no injuries they dispersed and he had not obtained any of their particulars. The plaintiff was told that Mr Edgerton hypothesised that the damage occurred as a result of another vehicle reversing into the front of the plaintiff’s car stationary car with the ignition off. The plaintiff denied this allegation.
The plaintiff was re-examined about his evidence of speed and about the time of and just prior to the accident. He said he did not alter his speed. He said “I don’t know whether I braked it happened all so quickly…within a couple of seconds”.

Expert Evidence

Bothe plaintiff and defendant relied on expert evidence in addition to the evidence of their respective loss assessors. Expert evidence is permitted under the Evidence Act 2008. Section 76 of the Evidence Act provides:

Evidence of opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Section 79 (1) of the Evidence Act provides an exception to that admissibility rule.

If a person has specialised knowledge based on a person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on knowledge.

Dr George Rechnitzer

The plaintiff relied upon an expert report and adduced expert evidence from Dr George Rechnitzer. He prepared a comprehensive dated 29 September 2015 (P 6). His testimony was directed to responding to the defendant’s scenario that the airbags could only have failed to deploy because the plaintiff’s vehicle was stationary at the time of the accident. Dr Rechnitzer is the Principal Engineer and Director of George Rechnitzer & Associates. He holds a Bachelor of Engineering and other degrees including a Master’s Degree in Engineering Science and a Doctorate in philosophy of Engineering, Heavy Vehicle Safety and is a fellow of the Safety Institute of Australia and a Member of the Institution of Engineers and a Member of the Society of Automotive Engineers. His company specialises in forensic and safety engineering. The substance of his evidence was that the failure of the airbags to deploy at the time of impact between the plaintiff’s vehicle and the BMW was explicable.
Dr Rechnitzer said he had been told the circumstances of the accident by the plaintiff. He said he had inspected the vehicle at the plaintiff’s premises on 6 August 2015 and the plaintiff was present and gave him a description of the accident. As well he attended the crash site and took photographs.
Dr Rechnitzer identified the vehicle build date as “December 2008”.
Dr Rechnitzer reported that the “collision was not a high severity impact, and no airbags deployed”.
Dr Rechnitzer undertook a “collision severity analysis”. He reported that the collision severity and estimated velocity change for the two vehicles could be estimated using a linear momentum analysis as the vehicles were he assumed almost aligned at impact. He described the delta-V as the vehicle change in velocity as equalling the post impact velocity minus the pre-impact velocity. He used a momentum equation to put together a table that sets out the estimated impact velocity change for vehicle initial speed of 70 and 60 km/h for the plaintiff’s vehicle and speeds of zero, 10 and 15 km/h for the BMW.
On these varied speeds his table identifies the estimated impact velocity change for the two vehicles. The estimates impact velocity changes for the plaintiff’s vehicle ranged from -24 km/h to -37 km/h and for the BMW it would be from 21 km/h to 33 km/h.
Dr Rechnitzer said:

“Considering the level of crush damage to the two vehicles, in the author’s opinion, the likely crash severity (delta-V of about 25km/h) would be at the lower end of this range, i.e. the Holden travelling at about 60km/h at impact, and the BMW not quite stopped at impact with its speed at about 10km/h to 15km/h. For the Holden Commodore ute, this gives a delta-V in the range of 24 to26km/h, and for the BMW 21 to 24 km/h (respectively)”.

From undertaking his analysis of the estimated impact velocity change for the two vehicles, Dr Rechnitzer then addressed the crash severity and airbag deployment thresholds. In undertaking this analysis Dr Rechnitzer expressed himself as follows:

“The damage to both vehicles does not represent a high severity impact; the crush of the front of the Holden showed low levels of damage to the main energy absorbing frontal structures of the vehicle (chassis rails, and upper side rails); and the rear crush of the BMW was low.
As noted in the crash analysis from Table 1, considering the level of crush damage to the two vehicles, in the author’s opinion, this is consistent with the estimated crash severity (delta-V) of approximately 24km/h for the Holden and slightly lower for the BMW (because of its higher mass).
Thus the estimated speed at impact for the Holden is about 60km/h, and the BMW not quite stopped at impact with its speed at about 10km/h to 15km/h.
Also, the collision did not result in the deployment of the airbags on the Holden, as would be expected in a higher severity impact. As the driver Mr Hussein did not suffer any notable injuries, this is also consistent with the non-deployment of an airbag as they are only intended to deploy at crash severities (delta-V) where injury is likely.
The non-deployment of the Holden’s airbags is also consistent with the author’s collision delta-V analysis showing a velocity change of approximately 24 to 26km/h (15 to 16 mph).
The vehicle manufacturers do not specify their airbag deployment thresholds, and the deployment algorithms vary by vehicle manufacturer and vehicle model, and vary depending on the crash type. In such a collision, deployments would typically be expected for a delta-V of approximately 20km/h to 30km/h. To be clear, non-deployment would also be in this range: for some vehicles deployment would occur at over 20km/h, and for others deployment would be over 30km/h (that is non-deployment would occur under 30km/h).

Chapter 3.4 of Dr Rechnitzer’s report is headed: “Conclusion on whether the available evidence is in support of the insured’s Mr Hussein’s version of the collision circumstances”. He wrote:

“On the basis of the available evidence, the author’s consideration of the collision damage to the two vehicles, and the circumstances of the crash location as claimed by Mr Hussein, in the author’s opinion the collision could have occurred as claimed, that is:
1.the Black 2009 Holden Commodore Ute travelling at approximately 60 impacting with the rear of the silver 2002 BMW 745 I sedan which is not quite stopped and was moving in a forward speed of about 10 to 15. The impact was in-line but a little offset to the right rear of the BMW.
2.The inferred collision scenario is shown in the author’s reconstruction diagram
3.The non-deployment of the Holden’s airbags is also consistent with the author’s collision delta-V analysis showing a velocity change of approximately 24 to 26km/h

The author’s qualifications to these conclusions are:
1.   The author’s assessment is based on the compatibility of the damage to the two vehicles, and the noted collision severity analysis
2.   There are apparently no photographs available of the Holden Commodore in its damaged condition, prior to parts being removed for damage assessment by others. The author’s inspection was done after the vehicles damaged front structure had been partly dismantled.
3.   The damaged BMW was unable to be inspected by the author and nor was it able to be inspected by Mr Egerton.
4.   In regard to the crash location, this cannot be determined by the author from the available evidence.

Dr Rechnitzer was cross-examined. A substantial amount of the cross examination conducted of Dr Rechnitzer focussed on the methodology he applied to arrive at the variable speeds of the Commodore and the BMW (assuming of course the BMW was the other vehicle involved) and the consequent delta-V analysis[7].

[7] A metric of crash severity and simply defined as the total change in vehicle velocity over the duration of the crash event

Dr Rechnitzer said that although the airbags did not deploy he did not regard it as an anomaly. He said the threshold severity of the crash had not been reached based on an analysis of a scenario in which the BMW had “not quite stopped” and plaintiff was at a speed of “approximately 60 km/h” based on the plaintiff’s account.
Dr Rechnitzer’s report consisting of Table 1 represents estimates. Dr Rechnitzer said that the change in velocity between the two vehicles was within the range at which the airbags may or may not deploy. Dr Rechnitzer said velocity is the speed and direction of travel of a thing. He said that in regard to airbags, vehicle manufacturers speak of a “deployment range”. He said a change in velocity is not measured in the accelerometer[8] but is “something that occurs as a result of the whole crash”.

[8] A device that detects its own acceleration

As to the manufacture of airbags he said that airbags are made by different companies but “deployment” is responsibility of vehicle manufacturer. He was asked if there was an applicable Standard and there does not appear to be one. He said that airbags deploy on a prediction that occurs in the “minutest time”. He said the sensor module undertakes an assessment of risk within the minutest of a millisecond and its prediction is calculated according to a rigid barrier.
Dr Rechnitzer said that the sensors for the airbags on the vehicle would as would ordinarily be the position, located on the chassis rails.
Dr Rechnitzer spoke about the “crash pulse” and how it is the determining factor for the deployment of airbags.
Dr Rechnitzer agreed with the opinion expressed by Mr Edgerton that airbags will not deploy if the engine of a vehicle is not engaged.
One scenario advanced by the defendant was that the BMW struck the plaintiff by reversing into it whilst stationary. When asked about this Dr Rechnitzer said it would have been necessary for the BMW to have travelled in reverse at a speed of between 45 to 50 km/h and to then strike the front of the plaintiff’s car.
Dr Rechnitzer was asked his opinion why there was a non-reading obtained by Mr Edgerton from interrogating the electronic data recording from the plaintiff vehicle? Dr Rechnitzer said that because it is an electronic system it is not infallible and therefore a system failure cannot be excluded or otherwise there may have been a problem associated with the reading itself of the data and that it was insufficient that Mr Edgerton having obtained a non-reading did not redo the exercise. However, Dr Rechnitzer acknowledged that he was not specialised in EDR data and had not undertaken any training in that field. Dr Rechnitzer did in his report and in his evidence criticise Mr Edgerton’s reliance on a “no reading” obtained from the EDR. Dr Rechnitzer said that without more testing Mr Edgerton’s result provided an insufficient forensic basis to accept the validity of the inputs and the reading he obtained.
Dr Rechnitzer said that the information he relied upon consisted of the information listed at page 5 of his report together with the account of the accident given by the plaintiff. He could not recall if the estimate of speed was given to him by the plaintiff or by someone else. Certainly Dr Rechnitzer’s report notes the plaintiff having told him the speed he was travelling and furthermore that the BMW had stopped.
Dr Rechnitzer said that speeds of 60, 65 and 70 km/h was the range he used for his analysis and that he did not consider speeds of 75 or 55 km/h because he had not understood it to be suggested that this was the speed at which the plaintiff was travelling.

Mr Purvis questioned Dr Rechnitzer as to why it was that if the plaintiff was doing “a bit under 70” as was his account, that his vector analyses that reported on a speed of 60 or 65 km/h could not be discarded. Dr Rechnitzer said that because he is not confident that a driver’s “estimated speed” is translated to the true speed his use “of a range” was a reasonable basis for him to conduct his delta-V analysis.
Dr Rechnitzer accepted the proposition put by Mr Purvis that the speed difference between two vehicles lies at the heart of his analysis. He was asked why he had not included a speed of 75km/h. Dr Rechnitzer said the speed limit was 70km/h and he did not do so despite Hall & Wilcox, solicitors for the defendant correspondence that he had been provided making reference to the plaintiff travelling at a speed of “approximately 70 km/h”.
Mr Purvis asked Dr Rechnitzer whether if it was assumed the plaintiff was doing 75 km/h and the other vehicle was doing 50 km/h the airbags would not deploy. Dr Rechnitzer said the other vehicle was “stopped”. Dr Rechnitzer was then asked why he had assessed a delta-V analysis based on a range of speeds for the BMW if the plaintiff had advised that the other vehicle had stopped. Again, Dr Rechnitzer referred to the uncertainty and the reliability of an account of speed by a driver involved in a sudden collision and which was why he reported on the BMW having “not quite stopped”. He was then asked why he did not include a speed 5 km/h and instead predicate the speed of the other vehicle at speed of about 10 km/h to 15 km/h. Mr Purvis suggested that surely the lower the speed of the other vehicle the greater the velocity. Dr Rechnitzer said he had included zero in his analysis so the point was of no substance. I disagree. The variance underpins the conclusion by Dr Rechnitzer of the non-deployment likely being within the range for the same.

Interposing of witnesses

Dr Rechnitzer’s evidence was interposed by Mr Joseph Voitec, a motor vehicle loss assessor called on behalf of the plaintiff. I was satisfied of his experience in his field of endeavour. The defendant did not challenge his expertise. In his report dated 20 January 2016 he assessed the plaintiff’s vehicle as total loss. In his oral evidence he described it as a “borderline statutory write off”. He said he did not believe it could be repaired. He assessed the pre-accident value at $35,810.50. He noted the Glass’s Guide for the vehicle was $26,200. By comparison Mr Dimopoulos, the loss assessor relied upon by the defendant, had considered the base value for a like vehicle at $23,700.
Mr Voitec said he undertook his assessment of the vehicle on the assumption that it was a February 2009 model based upon its registration date whereas Mr Dimopolous assessed the age of the vehicle by reference to the compliance stamped date of December 2008.
In regard to accessories, Mr Voitec assessed the value of the wheel package at $2,500 having arrived at this figure “by inquiry”. He estimated the painting at $2,400; the leather trim at $1,500 versus $600 assessed by Mr Dimopolous. The allowance made for kilometres travelled and the adjustment in regard to the same and the difference with the calculation made by Mr Dimopolous is reconcilable because of the difference in the model year used by them.
Under cross-examination Mr Voitec said he did not think the Commodore suffered y low level of deformation or exhibited low level damage. He said however he could not express an opinion as to whether the air bags should have deployed. In any event other than the loss assessors being equipped to give anecdotal evidence it was not either party’s submission that they were qualified to give expert opinion about the operation and deployment of airbags in motor vehicle collisions.
One area of disagreement stemming from the appropriate model year of the vehicle was the depreciation of the accessories. Mr Voitec proceeded on the basis of the date of first registration of the vehicle whereas Mr Dimopolous based his determination on the date of the compliance plate and thus he depreciated the accessories according to the e figures applicable to a 2008 vehicle.
Mr Purvis asked Mr Voitec if he agreed that Glass’s Guide allows and provides an adjustments table for various accessories such as the wheels, hard tonneau cover leather upholstery and metallic paint. Mr Voitec said that rather than using the Glass’s Guide he relied on the prices claimed to have been paid by the plaintiff and then depreciated the same by an arbitrary amount. However, one of the problems occasioned by this approach was the reasonableness of the depreciation in light of his acknowledgement that he was unaware of the age of the purchases. Mr Votic said he thought the accessories were on the car at time of purchase but as well he said he was unaware of the date that the plaintiff purchased the vehicle. It was suggested by Mr Purvis that his depreciation was unreliable. I agree. I am satisfied that had it been necessary to determine the matter the appropriate method to assess the price of the accessories for the vehicle is the Glass’s Guide table of Adjustment based of course on the proper year model of the vehicle.

George Dimopoulos

Mr George Dimopoulos was also interposed. He had prepared two expert reports and they were each received into evidence. He is a qualified panel beater. I accepted his expertise on the matters about which he testified. His qualifications and expertise were not challenged by the plaintiff.
Mr Dimopoulos said that he was requested by the defendant to assess the fair and reasonable cost of repairs to the plaintiff’s vehicle. He said he inspected the vehicle post-accident, that is to say, in its damaged state. He said he undertook two assessments of the vehicle. He said that part of the information he had to hand at the date of his inspection was the repair quotation. On the first inspection he asked that the vehicle be stripped because due to the description of the accident he was concerned to assess if there was structural damage. He then returned for a second inspection.
He assessed the repairer’s quotation and he adjusted it down and determined that the fair and reasonable cost of repair at $11,250.22 less the applicable excess.
He said he undertook his assessment on the basis that the vehicle was a December 2008 make and model. He said that in relation to the vehicle’s accessories he determined their value according to adjustment value tables provided in the Glass’s Guide. He approached the kilometre adjustment according to the Glass’s Guide as well.

George Dimopoulos cross-examined

Mr Dimopoulos was cross-examined firstly as regards his opinion that the appropriate year for the vehicle was 2008 as opposed to 2009. Mr Kenyon referred Mr Dimopoulos to his assessment report in which he identified the “Build Date” of the vehicle as 2009. Mr Edgerton also referred to the vehicle as a 2009 vehicle. Mr Dimopoulos said this was a mistake that he had corrected.
Mr Kenyon pointed out that although the car was stamped compliant 2008 it had not been delivered at that time and therefore a sale price had not been set. Glass’s Guide refers to “new” price. Mr Dimopoulos said he understood “new’ price as a reference to the date of “first ownership”. This was speculative evidence and unhelpful. I am satisfied that absent any better evidence offered by either party, the preferable method offered is the date of the vehicle’s compliance stamp.
Mr Dimopoulos agreed the car suffered deformation to both chassis rails. Mr Voitic’s oral evidence had been that he did not believe the vehicle could have been repaired at the cost assessed by Mr Dimopoulos. His evidence had been that had a repair process been undertaken he would have considered it very likely that a number of supplementary repair items would have arisen that would have significantly increased the costs of repair. Mr Dimopoulos did not agree but conceded the possibility of “perhaps a final supplementary” although he did not agree with Mr Voitic that the cost of repairs would in all probability be “significantly increased” perhaps “doubling or even tripling”.
Mr Dimopoulos agreed with the opinion expressed by Mr Voitic that the car was a borderline statutory write-off.
Mr Dimopoulos said he would have expected the airbags to have deployed given the damage to the chassis rails.
Obviously if Mr Dimopoulos had been made aware the accessories were in act after purchase accessories bought in 2012 as opposed to 2008 accessories that came with purchase then a different price would apply.

Dr Rechnitzer’s cross-examination continued

Dr Rechnitzer was asked about his curriculum vitae and expertise to comment on accident analysis and reconstruction and in particular he was asked about the content of courses he had attended that dealt with and furnished him with the requisite knowledge of crash reconstruction. Mr Purvis asked Dr Rechnitzer if any courses he had undertaken equipped him to gain an understanding of and capacity to assess the severity of impacts. He said they had. I am satisfied that Dr Rechnitzer acquired sufficient skill to qualify him to testify on this aspect of specialised expertise. His disclosed experience is broad and detailed.
Mr Purvis called for the plaintiff’s solicitor’s letter of instructions to Dr Rechnitzer however the letter in fact formed part of the documents attached to Dr Rechnitzer’s Order 44 Statement of Expert evidence. It consisted of a letter sent by email and dated 29 July 2015. Mr Purvis addressed features of the letter and language used in it including an inquiry whether Dr Rechnitzer could be of assistance “in providing a report assisting our client”. Mr Rechnitzer replied on 30 July 2015. Mr Purvis suggested his response did not express the appropriate qualification that his opinion would be based on objective considerations as opposed to him offering to provide a report in support of the plaintiff’s account. Dr Rechnitzer said that he would normally express something along these lines and could only say by way of explanation that in this case he had overlooked doing so. Mr Purvis suggested that Mr Rechnitzer was derelict in not having included such a qualification to the proffering of his opinion. I do not regard Dr Rechnitzer as derelict in a professional sense and whilst I accept the omission was an oversight it is not one I have been troubled by or otherwise has led me to conclude that Dr Rechnitzer’s opinion was offered in other than a professional manner.
Dr Rechnitzer was asked about the methodology he adopted in approaching the controversy. He said that he began his consideration of the task by asking himself the question “what speed makes sense for the airbags not to have deployed if the ignition was engaged as the plaintiff said it was”. He said the facts he was confronted by were that the airbags had not deployed but yet at the same time there was severe front impact damage. He said he took the accounts provided to him and “I then extrapolated certain scenarios”. Relevant matters identified in his report included for example:

(At page 8 point 5 and 6):
“The left side front has some direct impact contact, but very low levels of deformation”. “The end of the right side chassis rail was slightly deformed at its end, with its end structure slightly rotated (deformed) towards the centre of the vehicle. This is consistent with the aluminium bumper support beam being bent inward at its centre”.
(At page 9 paragraph 6):
“The collision was not a high severity impact, and no airbags were deployed”.
(At page19):
“The damage to both vehicles does not represent a high severity impact; the crush of the front of the Holden showed low level damage to the main energy absorbing frontal structures of the vehicle (chassis rails, and upper side rails); and
“The rear crush of the BMW was low”.

Mr Purvis directed Mr Rechnitzer to Mr Edgerton’s report. He was asked what the strongest structural elements of the vehicle are that give an indication of crush severity. Mr Rechnitzer said that the chassis rails absorb the greatest force. Dr Rechnitzer said that the appearance of severity of damage however does not give a good idea of frontal crush.
Mr Purvis asked Mr Rechnitzer whether, if the plaintiff was driving at “a little bit under 70” and the other car was stationary when the collision occurred and the airbags did not deploy would not the plaintiff have been at some considerable physical peril. Dr Rechnitzer said he would have. However, of course, the plaintiff was not injured beyond some cursory and temporary neck pain.
Mr Purvis put to Dr Rechnitzer that if the plaintiff was travelling at between 65 and 70 kph, the delta- V would be between -34 to -37 and 31 to 33 for the BMW if it had been travelling at zero. Dr Rechnitzer agreed that if they were the differences of the delta-V velocities the airbags would be activated. That in an important acknowledgment by Dr Rechnitzer.
Mr Purvis asked Dr Rechnitzer the basis on which he had postulated a delta-V of “about 25” which is at the lower end of the scale and how he arrived at a conclusion that warranted a calculation based on the Holden travelling at about 60 kph. Dr Rechnitzer said the airbags did not deploy and in the context of the level of crush he worked outwards from that central dilemma. Mr Purvis suggested to Dr Rechnitzer that his approach was one in which he calculated the respective speeds at which the vehicles must have been travelling based on the Holden being under power and the airbags not having deployed and so worked towards a finding that would fit such a presentation. Mr Purvis suggested that had Dr Rechnitzer presented a speed of 70 then the delta-V would likely have been higher leading to the conclusion that the airbags should have deployed. Dr Rechnitzer said that the crash damage did not fit with a delta- V of the higher order suggested by Mr Purvis. Dr Rechnitzer was asked if the plaintiff was travelling at 68 or 69 and 70 km/h and the BMW was stationary how he arrived at a conclusion that the non-deployment was within range. Dr Rechnitzer said he would have expected a lot more damage and the airbags to have deployed or if they did not then the airbag was faulty.
When Dr Rechnitzer was asked about the possibility of the defendant’s scenario of engine being off and the vehicle being stationary and then struck by another vehicle, he said, “Yes I suppose it could” have occurred that way. He also accepted the Commodore could have been struck head on in a different place than the claimed accident scene and self-evidently by a different car than the BMW allegedly driven by Mr Fagnani.
Dr Rechnitzer was also told that the plaintiff’s evidence was that no warning sign had been displayed on the instrument panel and he said that this would “probably” suggest the airbags were not faulty.
Dr Rechnitzer described vector analysis as an equation that refers to the mass of the two vehicles. He said that the result of such an analysis would be affected by any change to the mass of either vehicle such as the load it may be carrying. He made no assumptions that there was any discordance to the ordinary mass of either vehicle. He said as well that a vector analysis equation assumes an absence of resistance. He was asked by Mr Purvis what the effect would be if the plaintiff’s vehicle had been coming up from behind and if, for example, the driver of the BMW had his foot heavily applied to the accelerator. To the proposition that resistance would increase as a result, he said the velocity would alter by a “little bit”. Dr Rechnitzer agreed that that he made no qualifications to his conclusion based on that factor.
Mr Purvis directed Dr Rechnitzer to his report at page 32 in which he commented on the “unlikely” scenario of the BMW reversing at speed into the front of the plaintiff’s vehicle. Mr Purvis criticised Dr Rechnitzer for not having speculated about how the accident could have been staged for example at a different location. I do not accept that as a valid criticism of Dr Rechnitzer.
Mr Purvis questioned Dr Rechnitzer about his criticism of Mr Edgerton’s findings because of a lack of independent validation of the EDR data. Dr Rechnitzer said that his opinion that there was a lack of validation by Mr Edgerton was irrespective of the particular findings but only that from a forensic evidentiary point of view “you do not rely on one result”. Of course Mr Rechnitzer accepted he lacked expertise in EDR data captures. His criticism was directed not to the fact of the interpretation of readings by Mr Edgerton but whether from a forensic standpoint the result of the data taken by him should be treated as an empirical findings arrived at by reason of forensic rigour.

Re-examination

Dr Rechnitzer was directed to his answer in cross-examination that an absence of a warning light “probably” suggested an absence of fault with the airbags. He was asked if he was aware of circumstances in which warning may not be displayed and yet there still be a fault with the airbag deployment. He said that “there might possibly some electrical fault” but that he did not interrogate the vehicle to that end and it was not a matter that he was called on to offer expert opinion about.
The transcript of the record of interview with the plaintiff was tendered and the plaintiff formally closed its case.

The defence

The defendant called its expert witness Mr Edgerton.
Mr Edgerton is a Senior Forensic Investigator employed by Forensic Collision Investigations He appended three reports to his statement of expert evidence dated 20 July 2015.

i.6 July 2015
ii.30 August 2015
iii.24 March 2015

Mr Edgerton gained experience as police officer and from 1988 to 1997 worked as an investigator with Accident Investigation Section and gained experience in the area of collusion dynamics and collision cause analysis and has lectured in these and allied fields. His experience encompasses determination of velocities and he has undertaken a number of identified courses including Crash Data Retrieval Analysis and Applications courses.
His report referred to “initial circumstances” of the claim involving the BMW having stopped suddenly and the plaintiff having collided into its rear. As to observations made of the structural component parts of the vehicle i.e. to the chassis rails and radiator support panels of the plaintiff’s vehicle, Mr Egerton said the structural damage was of “moderate severity”. He said there was no significant unrelated damage to the vehicle other than normal wear and tear. He said the bonnet had contact damage across the leading area, predominantly in the centre. The marks on the contact damage had a vertical striations. The bonnet had been dislodged rearwards and buckled upwards. The buckling was even across the bonnet. There was other damage she identified including the endplate on the offside chassis having been crushed and formed inwards in the bumper bar cover having severe contact damage across its entire face. He said the nearside chassis rail end had torn through the cover on the cover had been severely buckled and formed. He said the bumper bar reinforcement which is made of aluminium was severely crushed and formed and torn open where it bent backwards. He said both the radiator and the condenser were badly crushed and deformed. He said he examined all front light globes and they were unremarkable with all globes intact. He said with the exception of the nearside park light globe’s all filaments were intact with no distortion or damage evident. He reported that the park light globe’s filament was fractured but there was no distortion or melting of the broken ends. He said the rear globes were inaccessible.
He said the airbag control module for the vehicle does not record pre-crash data and hence it was accessed using a Bosch Crash data Retrieval tool but there were no events (deployment or non-deployment) recorded.

Based on his examination of the plaintiff’s vehicle, his preliminary conclusions were:

· the damage to the vehicle was collision damage;
· the damage was consistent with the vehicle having been involved in an in-line collision with another vehicle

He reported that collision the vehicle was involved in could be one of three types:

·it is moving forward and has impact to the rear of another vehicle
·it is stationary and has been reversed into by another vehicle
·it has been involved in a head-on collision with another vehicle.

He said that on their face each of the above scenarios is equally valid. He said that although he was unable to determine which scenario is more consistent without being able to examine the damage to the third-party vehicle, “the lack of data recorded in the airbag control module… is indicative that the vehicle was stationary with the ignition off.” He wrote that the non-deployment of the airbags and seatbelt pre-tensioner on the plaintiff’s vehicle “is not consistent with the severity level of the damage and the angle of the force being applied to the vehicle”. He wrote that the “damage to the front of the vehicle is severe structural damage indicative of a relatively high speed impact with a likely change of velocity that would exceed the deployment threshold. The angle of the force being applied in the damage is within the 30° angle deployment window. After examining the damage to this vehicle and based on previous extensive experience with examining collision damage to vehicles and deployment of airbags and seatbelt pre-tensioner is, the writer formed the opinion that this damage should have resulted in an airbag and seatbelt pre-tensioner deployment.”
Mr Edgerton reported that he had been able to access the event data recorder in the plaintiff vehicles airbag control module and this showed that there had been no activation of the event data recorder. He reported that the airbag system will only deploy if the vehicle’s ignition is on. The event data recorder will also only record if the ignition is on. He wrote that the “event data recorder will record non-deployment events are long as the change of velocity involved is more than 8 km/h.” Mr Egerton came to the conclusion that the damage to the vehicle would have involved a change of velocity greater than 8km/h and that the event data recorder would have recorded this event, if the ignition had been on. He wrote, that he “considered it highly likely that when this vehicle was damaged, it was stationary with the ignition off”.
Mr Edgerton said that he had he had undertaken a Bosch training course in Australia and refresher courses in 2013 and 2015 that equipped him to undertake this specialised work. I am satisfied of his expertise in this area of specialised knowledge of the use of crash data retrieval software.
Mr Edgerton said that when the ignition is on the airbag system awakens. The sensors constantly detect movement and recognises a change in velocity and a likely event and calculates whether to deploy the airbags based on these calculations. The number of occasions the system is woken is recorded and logged. Thresholds for deployment vary between manufacturers. Australian and North American thresholds are different and American airbags deploy at very low speed collisions.
Mr Edgerton acknowledged that it is a disadvantage not having been able to physically examine the damage to the third party vehicle.
Mr Edgerton visited the scene of the accident. He said in response to a question by me that it would not be sensible to consider that an accident could have been staged at the place and time and hence if the accident was staged then it was probable that it occurred somewhere else.
Mr Edgerton gave evidence about Dr Rechnitzer’s report and his vector analysis. He disputed the aptness of that term to this situation at hand said that better describes movement at angles and that the better term was “conservation of momentum”. He said that on the vector analysis performed of 34-37 and 31 -33 respectively “the air bags should have deployed”.
Mr Edgerton said in addition that if the airbag system was faulty the vehicle’s SRS warning lamp would have displayed. He said it checks itself and then it disappears. Thus if the light did not display this would mean that two simultaneous faults presented to the air bags system. He was asked if he was aware that this could occur. He said it could and that he had experience of one severe fatal crash in which this had happened. However, he said that when he examined the plaintiff’s vehicle the SRS warning light was working normally. He said it was a standard procedure for him to examine the warning light and he would only have referred to it in his report in the event it had not been working when tested.

Cross-examination of Mr Edgerton

Mr Edgerton was asked if he inquired of the availability of CCTV in the area of the alleged accident. He said he did not see evidence of any CCTV in the area but he did not make inquiries at any of the premises in the area including the bowling alley that the vehicle that was allegedly ahead of the BMW had suddenly turned left into that led to the accident.
Mr Edgerton was asked if the of damage is consistent with an off centre longitudinal crash with another vehicle? He said he saw the BMW post repair and the plaintiff’s account and the photos is “generally consistent” with the type of collision described by the plaintiff. He said a staged accident sometimes involves multiple applications of force to achieve the desired level of damage but in this case he said he did not have any indications of the plaintiff’s vehicle being hit on more than one occasion. He was asked if the forensic evidence apart from the EDR readings was consistent with the accident as claimed by the plaintiff and he said, “generally consistent”. He said as well that he “generally agreed” with the opinion of Mr Rechnitzer as to the approximate necessary speed required to support a contention that the Commodore was stationary and reversed into.
Mr Edgerton was asked if the damage to the Commodore was such that it would not have been able to be driven to Mahoney’s Road. He thought that would be the case with the result that it would have needed to have been transported to the scene of the alleged accident.
Mr Edgerton said that the data at the very least would have disclosed an absence of non-deployment. Mr Edgerton relied on the Bosch system he hooked up to the plaintiff’s vehicle on 25 July 2015. He said he accessed the system. He said the CDR file program ran correctly. He said the system is not self-repairing in the sense that it could fail and then correct itself and thereby lead to a false reading.
Part of Mr Kenyon’s attack on the reliability of the testing and the conclusions drawn from it was to suggest to Mr Edgerton that Bosch had identified problems with its own software. Mr Kenyon’s question was predicated on a misunderstanding of the facts. All Bosch did by way of disclosure was to advise the user of the need to use the current authorised version of the software. The provision of warnings to use updated software is not an acknowledgement that the system contains or could contain “problems” as suggested by Mr Kenyon. Mr Edgerton said he was using the relevant upgrade software and his recorded readings taken on 25 July 2015 record that fact.
Another aspect in which Mr Kenyon misapprehended the effect of Mr Edgerton’s opinion was his recourse to and reliance on the result “none” for events recovered. Mr Kenyon suggested this somehow also meant the crash date retrieval system was not working. That is incorrect. Mr Edgerton did receive a response and the response was no event had been logged.
Mr Edgerton said that after 250 ignitions the last non-deployment is erased. As at the date of inspection it could not be known where the number of prior ignitions stood. Mr Edgerton said the Holden erases events at the 250^th ignition of a non-deployment event i.e. a change of velocity. To be recorded the system needs to detect an impending crash pulse. Mr Egerton explained that the everyday braking event will not engage a crash pulse and hence be recorded but instead requires a crash and where there is none “there will not be a recorded event”. Mr Edgerton said that “you cannot have a non deployment event without a crash”. I accept his evidence. Mr Edgerton said that a greater change in velocity of more than 8 km/h is required to record an event. I accept his evidence about this as well.
Ultimately, the highest Mr Kenyon could suggest by way of explanation for the data retrieved by Mr Edgerton being unreliable was “that there was something wrong on the day of the reading you conducted”. Mr Edgerton did not agree with this suggestion and testified that a false result will not occur and that the fail safe built into the software is to prevent the user of the programme from engaging the data retrieval in the first place as opposed to it running and procuring a false reading. That did not happen in this case and Mr Edgerton was aware of the differences in the program’s operation because he said he had been confronted with such a situation in the past. This however was not such an instance. I accept his evidence.
Mr Kenyon suggested to Mr Edgerton that according to the letter of instructions from Hall & Wilcox the Commodore was described as a vehicle that “has been totalled loss twice”. Mr Purvis objected and said that there was no evidence that the vehicle had been involved in prior collisions as a result of which it had been declared a total loss and that there may well be other reasons. Mr Purvis was correct. In any event Mr Edgerton said that had there been previous accident events, it would have no bearing on his investigation. The possibility of the same is, I am satisfied, irrelevant to the resolution of the conflict before me. Mr Kenyon persisted in suggesting to Mr Edgerton the existence of things relating to previous crashes despite there being an absence of evidence of previous crash events and I intervened to stop what I concluded were irrelevant questions.
Mr Edgerton said he had come upon situations in which airbags did not deploy but when this had happened “there had always been an error code recorded”.
Mr Kenyon asked Mr Edgerton why he did not interview the tow truck driver given that there was no evidence of debris to see if perhaps he might have been able to say if it had been swept away by him from the accident scene. Of course Mr Edgerton’s attendance at the scene occurred 6 months after the accident by which time a recollection from the tow truck driver might have been non-existent or negligible but in any event, Mr Edgerton said it was not a matter that engaged his thinking. I do not think it was relevant.
Mr Edgerton was asked about that part of his report that contained a globe analysis. Mr Kenyon suggested to Mr Edgerton that his opinion was that had the plaintiff’s car been driven into there would be reverse motion at play. He was asked if he considered it a relevant fact whether there was deformation of the rear globes. Mr Edgerton said there would have been insufficient transference of force to the rear to exhibit filament deformation. He said this was no more consistent with the lights having been on when the car was damaged.
In re-examination Mr Edgerton said that in his opinion if the accident was staged it would have been be a safer exercise for the driver to have reversed into the plaintiff’s vehicle while stationary than to drive head on into it.
Mr Kenyon applied to reopen his case to issue a subpoena to the tow truck driver. The defendant did not allege the tow was not genuine or that it was part of the staged event. Mr Kenyon argued that the tow driver might remember cleaning debris from the scene in which case the presence of the same would be more likely than not consistent with a genuine accident. I delivered a ruling refusing leave to issue a subpoena to the tow truck driver. His attendance was not capable of being assured by such process and, in any event, the prospect of any probative evidence by him was negligible. Mr Kenyon also applied to reopen his case to allow a subpoena to be served on Mr Fagnani to attend to give evidence. Again I delivered a ruling refusing the application. In regard to allowing the plaintiff leave to leave to reopen its case as such evidence as might be adduced from Mr Fagnani could likely require the plaintiff to give further evidence in chief and also for one or both of the experts to be recalled to comment on such additional evidence. I determined that the plaintiff had ample opportunity to secure the attendance of Mr Fagnani but had taken no steps to do so and furthermore when the application was made neither Mr Kenyon nor his instructing solicitors knew where he could found in order to effect the process of a subpoena on him. In my view, the plaintiff’s further application was inconsistent with the Civil Procedure Act 2010. Also the potential vice was not ameliorated due to the defendant applying to recall the plaintiff for further limited cross-examination with the result that the case was adjourned. The defendant’s application was made prior to the close of its case.

Plaintiff recalled

I granted leave to the defendant on counsel’s oral application to recall the plaintiff for limited further cross-examination on a document that was not discovered but I was told related to his credit. Mr Kenyon opposed the application on the basis that his applications to issue subpoenas had been refused and that it was “good enough” for the defendant to be afforded an indulgence then so it should be for the plaintiff. Mr Kenyon’s submission was unhelpful and misapprehended the difference in the nature of the applications made. However, I accepted that the costs of the adjournment to recall the plaintiff to be cross-examined may fall to be borne by the defendant and I reserved the right of the parties to be heard on that point if required at the appropriate time.

Plaintiff recalled for further cross examination

The further cross-examination of the plaintiff went to his credibility. He was asked whether about time of collision he had sources of income other than the Newstart Allowance. He said he did not and he said that the only income he received was Newstart Allowance. He then said that, “I may... maybe was doing some form of security work but I can’t remember when”. The plaintiff’s bank statements for the period 11 April to 4 August 2014 bank statements identify only Newstart deposits save for two small deposits. He then said he received cash income for the security work.
The plaintiff was asked if prior to the collision he had expressed any interest in establishing his own business. He said that Centrelink had forced him to “do something” or “he would end up on the dole forever”. He said he applied for an ABN with effect from May 2014 as a sole trader. The business name was “HHH Towing” a tow truck business but which he said was a speciality tow business for forklifts and excavators. The business name was registered according to ASIC records on 4 June 2014. On 22 July 2014 (that is about 2 weeks after the claimed collision) the plaintiff made a finance application to ESANDA of approximately $100,000. Mr Purvis asked the plaintiff if he told ESANDA in his application for finance that his current occupation was tow truck operator. The plaintiff said he had a finance broker and it was “done by the broker. He just made it up in order to get the money”.
The plaintiff said he chose to pursue the business of towing because he knew people in his family who worked on home building sites and he was aware that trucks were required in order to transport heavy forklifts and excavators and the like. He said that he intended to tow heavy machinery but not cars. He said he had no contacts in the towing industry.
The loan would have required the plaintiff to pay a cash deposit of $15,000 of the loan amount of $99,000 but of course he said he did not have $15,000. It was suggested by Mr Purvis that had the defendant paid out his claim he would have been able to pay the cash deposit. Mr Purvis put to the plaintiff that he staged the accident to facilitate obtaining money to secure the loan facility to fund his business for the purchase of the tow truck of $80,000. The plaintiff denied the allegation and he said his broker had intended to obtain a loan for an amount greater than the purchase cost of the machinery of $80,000 and use the excess amount as the required deposit. “I never lied to anyone. The broker did”.
The plaintiff was questioned regarding other matters contained in the loan application including information in relation to his “Personal Assets”. The information disclosed:

·Cash at bank in the amount of $10,300 however the plaintiff said, “I had nothing”.
·Household effects valued at $45,000. When asked by counsel for the defendant whether at the time of the application he had $45,000 of household effects, he said, “nup”.

The plaintiff when confronted by these false statements said: “The broker had to lie to get a loan”.

Kenyon Re-Examination

The plaintiff said the cost of the truck was $80,000 and the balance of the loan was to facilitate the amount that would needed to have been put down by way of cash deposit and so therefore the plaintiff was intending to finance 100 % of the purchase by way of loan. The plaintiff said that the finance application was refused.
The plaintiff said that he had never conducted a business as a tow operator.
The plaintiff said he did obtain a heavy duty licence. He said his family assured him they could find jobs for him to undertake heavy lifting.

Submissions

Mr Purvis referred to the decision of the New South Wales Court of Appeal in SGRO v Australian Associated Motor Industries Ltd (2015) 72 MVR 320 NSWCA 336 found insurer bears no onus but rather the insured does and the onus of proof does not shift because for example the insurer raises by way of defence a fraud. Beasley P–said at paragraph 44:

“In a case where, on the whole of the evidence, the probabilities are equal, and plaintiff will fail, having not satisfy the court on the balance of probabilities of the necessary facts to establish the cause of action. If in a case such as the present, the court had found that the probability that the vehicle was stolen was equal to the probability that it was not stolen, the appellant would not have succeeded on his claim” (citations omitted).

Mr Purvis submitted that I should not accept the plaintiff’s account. He referred to various anomalies in the plaintiff’s evidence such as the amount of purchase price of the vehicle and how he paid for it. He submitted that the circumstances of the day of the accident was incredible. He submitted that the coincidence of timing of the plaintiff’s his application for finance and the occurrence of the accident should be regarded as more than merely coincidental. He referred to the declaration of the value of the vehicle of $15,000, which if true showed the vehicle was significantly over insured but if purchased for approximately $29,000 as was the plaintiff’s evidence suggested the provision of false information to VicRoads for stamp duty.
There is considerable force in the submissions made by Mr Purvis. The submissions however need to be tempered by an understanding that the plaintiff’s honesty in general is not on trial. Rather what I am called on to determine is whether the plaintiff has established on the balance of probabilities that he was involved in an insurable event. Thus his honesty in the account of the alleged accident is what is paramount. However, as I have already noted, the nature of the plaintiff’s evidence in answers to which I have referred including his preparedness to allow his broker to proffer false information for financial advantage has reduced my capacity to accept the honesty of the plaintiff’s evidence on contestable matters probative of the issues at hand regarding the accident and his account of it to the defendant unless independently corroborated.

Mr Purvis submitted that had Mr Fagnani been called by the plaintiff and had he corroborated the plaintiff’s account of the accident then “that would have been the end of it” but he then modified this argument when he accepted that nonetheless there would have remained the obstacle of the “scientific evidence”. I am not satisfied that had the other driver been called it would have resolved the controversy but I am satisfied the plaintiff’s position would in all probability have been enhanced and the absence of Mr Fagnani is inexplicable. The attempt belatedly made to cause him to be subpoenaed when his whereabouts were unknown had an air of unreality to them and I am satisfied that the failure to take steps to secure his attendance should be viewed adversely in accordance with the principle in Jones v Dunkel (1959) 101CLR 298. It would also have reasonably been anticipated that the plaintiff would adduce evidence from his brother in law to corroborate the price for which the plaintiff purchased the car as they were matters about which answers had been given by the plaintiff to the defendant as part of its investigation of the claim and without more I have concluded were false.

Jones v Dunkel stands for two propositions. The first governs drawing inferences generally. An inference is a conclusion that a fact exists based, not on direct evidence, but on the existence of some other fact or facts, made by the ordinary exercise of reason in the light of human experience[9]. The critical point made in Jones v Dunkel is that an inference can only arise “as an affirmative conclusion from the circumstances proved in evidence, that is, ‘[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed”’.[10] The second proposition extracted from Jones v Dunkel is that the unexplained failure of a party to give evidence, or to call someone who might properly be thought would be able to throw light on a fact in issue, confirms any inferences that may properly be drawn against that party, rendering more probable the inferences against them that are open on the evidence[11] . However, an unexplained failure to give evidence “is not treated as evidence of fear that it would expose an unfavourable fact, nor an assertion of the non-existence of the fact not proved”.[12] The ways in which this principle operates was explained by McKerracher J in United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 at [74] and [75] as follows:

[9]: G v H (1994) 181 CLR 387, at 390

[10] Jones v Dunkel at, respectively, 304 and 305; see also at 31-320, Carr v Baker (1936) 36 SR(NSW) 301 at 306-307, and Bell v Thompson (1934) 34 SR(NSW) 431 at 436-437.

[11] Jones v Dunkel at 312 and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 119

[12] HML v R (2008) 235 CLR 334 at [303]

Reliance on inference – the principle
Proof of any fact on the balance of probabilities can be established by circumstantial evidence (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (at [90])); that is, by proof of primary, or intermediate, facts from which the court infers a further fact (Shepherd v The Queen (1990) 170 CLR 573 (at 579). The primary facts can themselves be the product of inference from other facts.
The applicants and the ABCC submit that in this case, in which the civil standard applies, ‘you need only circumstances raising a more probable inference in favour of what is alleged’ (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5)). A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts (Bradshaw (at 6)). Certainty is never possible, and is not required (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 (at 141)); all that is necessary is that ‘circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought’ (Bradshaw (at 5)). For the purpose of considering whether this test is met the Court must ‘consider the accumulation of the evidence’ (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (at 535)). It is appropriate ‘not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence’ (Clay v Clay (1999) 20 WAR 427 (at [55])), by considering ‘the weight which is to be given to the united force of all the circumstances put together’ (Belhaven and Stenton Peerage [1875] 1 App Cas 278 (at 279). The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference (Chamberlain (at 536)). It also means that:
[a] true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.

(Longmuir (at 141)).
The overall effect can be a product of primary facts that are combined like ‘strands in a cable’ (Seltsam (at [90])).
The applicants and the ABCC submit that one circumstance that requires particular attention in this case is the product of the combination of the following facts:
(a)         The motivation of the unrepresented respondents is within their knowledge.
(b) There is no evidence that any of the unrepresented respondents ever asserted before these proceedings commenced that they had an innocent motivation for their failure to work in accordance with their rosters in January 2010. This is so notwithstanding that, if their motivation was not industrial, they had a strong incentive to bring it to their employer’s attention. Their silence on this point inevitably condemned them to lose any right to be paid for the period when they failed to work (see Div 9 of Pt 3.3 of the FW Act and s 42 of the BCII Act).
(c)         In the nature of things, it is impossible for the applicants and the ABCC to produce evidence of a ‘non-inferential nature’ of what motivated the unrepresented respondents, other than by admission.
(d)         In these proceedings, each of the unrepresented respondents has had an opportunity to deny that they had an industrial motivation, and to give evidence to explain that their motivation was not industrial.
(e)          However, none of the unrepresented respondents chose to take that opportunity (as at 20 September 2011). No reason has been given, or otherwise appears in the evidence, why they did not do so.
The applicants and the ABCC contend that this circumstance ‘is properly to be taken into account as a circumstance in favour of drawing the inference’ that the unrepresented respondents had an industrial motivation (Jones v Dunkel (1959) 101 CLR 298 (at 312) and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 (at 119)). The significance of this circumstance lies in the principle that evidence is to be weighed ‘according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted’ (Blatch v Archer (1774) 98 ER 969 (at 970)).
I accept, as submitted, that the failure of the unrepresented respondents to deny an industrial motivation, or to give an explanation of an alternative innocent motivation, operates in three related ways:
(a)It confirms any inferences that may properly be drawn against the unrepresented respondents (The Insurance Commissioner v Joyce (1948) 77 CLR 39 (at 61)), rendering more probable the inferences against them that are open on the evidence (Jones v Dunkel (at 312), Black v Tung [1953] VLR 629 (at 634)) and makes ‘the inference … less unsafe than it could otherwise possibly appear’ (May v O’Sullivan (1955) 92 CLR 654 (at 658-659))
(b)The fact that the unrepresented respondents have not denied that they were industrially motivated, or given evidence in support of such a denial, may more readily enable a court to be satisfied that they were so motivated. This may be so even if the weight of the evidence in support of industrial motivation is ‘not great’, and even if only ‘slight evidence explanatory of the circumstances might displace the inferences which may be drawn from it’ (Bradshaw (at 5)). In Parker v Paton (1941) 41 SR (NSW) 237 (at 243) reference was made to ‘comparatively slight evidence’ and in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 (at 4) to ‘very slight evidence’.

The failure of the unrepresented respondents to deny or explain facts when to do so was in their exclusive power, ‘gives a colour to the other evidence against [them]’ (Boyle v Wiseman (1855) 156 ER 598 (at 600)), ‘allows increased strength or weight to be given to primary facts favourable to [the applicants and the ABCC] and allows inferences favourable to [the applicants and the ABCC] to be more confidently drawn’ (Longmuir (at 143)).

In light of the above expressed principle, the adverse inferences that I have drawn of the plaintiff’s dishonesty were entirely open to be made and were not displaced by the plaintiff.

Plaintiff’s submissions

Mr Kenyon posed the question whether the accident happened as the plaintiff says it did? He submitted that if it did not then it would have required in all probability the BMW travelling in reverse at between 46 to 50 km/h on Mahoney’s Road or it would have required the plaintiff’s car and the BMW being conveyed to the scene and staged.

Mr Kenyon submitted that “airbags are not infallible”. The defendant did not submit they were. Rather the defendant presented evidence that the data crush recording did not record a deployment or non-deployment event and that as well the instrument warning light was in working order at the time of Mr Edgerton’s examination of the plaintiff’s vehicle. The coincidence of the two events occurring simultaneously coupled with the necessary allowance for an adjustment to speed which would be contrary to the plaintiff’s evidence to the investigator and in court to which is added the absence of Mr Fagnani, in my judgement makes the explanation for the airbag system not deploying while the ignition was on, improbable.

Mr Kenyon argued that Dr Rechnitzer’s evidence was that the plaintiff’s vehicle was within the threshold of deploying and not deploying the airbags based on his delta V analysis whereas Mr Edgerton he contended did not conduct such analysis and instead relied on the outcomes from the software interrogation. I do not accept the intended force of that submission. Much of Dr Rechnitzer’s analysis, legitimate though it was, nonetheless is predicated on a finding by me of a state of sufficient satisfaction of the occurrence of a set of “comparables” between the two vehicles in terms of speed and something other than being stationary in order to account for the crush severity but the non-deployment. On the other hand, Mr Edgerton’s report was in my judgment not riven with such conjecture. Mr Kenyon said his ongoing inquiries to have the car repaired is inconsistent with a staged accident. I regard that as a neutral fact.

The standard of proof

Contrary to common belief the standard of proof in civil proceedings is based on s 140 of the Evidence Act 2008 that provides that in civil proceedings the standard of proof is the same as it is at common law that is, the balance of probabilities. The Evidence Act 2008 also incorporates the principle from Briginshaw v Briginshaw (1938) 60 CLR 336 that a court may take into account the nature and gravity of the subject matter when deciding whether the standard of proof is met. This standard of the balance of probabilities applies to the facts which a party has a legal burden of proving.

Matters of consider when determining proof

Section 140(2) of the Evidence Act requires the court to consider the following matters when determining whether a case is proved on the balance of probabilities:

(a)    the nature of the cause of action or defence; and
(b)   the nature of the subject matter of the proceeding; and
(c)    the gravity of the matters alleged.

In assessing the nature of the cause of action or a defence, the court may take into account the gravity of the consequences which flow from a particular finding (Morley v Australian Securities & Investments Commission [2010] NSWCA 331 at [742]). Thus, the graver the consequences of a particular finding, the stronger the evidence needs to be in order to conclude that the allegation is established on the balance of probabilities[13]. The three matters specified in s140 (2) do not exhaustively state the matters the court may take into account when deciding whether a matter is proven on the balance of probabilities. A court may, for example, take into account the inherent unlikelihood of the alleged conduct, and common law principles concerning weighing evidence (Qantas v Gama (2008) 167 FCR 537 at [138] per Branson J). As I mentioned much earlier in these reasons I approached my consideration of the evidence and the allegation of the staged accident tempered by that expression of caution.

[13] Morley at [746].

Where a civil proceeding involves allegations of criminal conduct the standard of proof remains the balance of probabilities. Judicial statements that clear, cogent or strict proof is required to establish serious matters such as fraud do not address the standard of proof. Instead, such statement reflects the conventional view that people do not ordinarily engage in criminal conduct and a court should not lightly make such findings: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450. Similarly, in a civil proceeding involving circumstantial evidence to prove allegations of dishonesty, as is in play in this case, it is not necessary to exclude all other rational explanations. The direction applicable, for example, in criminal cases that the prosecution must exclude all rational explanations consistent with innocence is a function of the higher standard of proof and does not apply in civil proceedings (see Chong v CC Containers Pty Ltd [2015] VSCA 137 at [52]-[54]).

Section 140(2) and the common law

Section 140(2) of the Evidence Act echoes the principles expressed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 that “reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” are relevant to deciding whether a matter is proved on the balance of probabilities: (Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466).

Standard of proof and “actual persuasion”

The standard of proof on the balance of probabilities requires that I am satisfied in the sense that I can reach a state of “actual persuasion of the occurrence or existence of the fact in issue before it can be found” (NOM v DPP [2012] VSCA 198 at [124. A ‘[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact” (NOM v DPP [2012] VSCA 198 at [124]. Under s140, a party will not have proven its case if the likelihood of the plaintiff’s case and defendant’s case is perfectly balanced (Carney v Newton [2006] TASSC 4 at [61]). Similarly, a plaintiff will not succeed merely be establishing that his or her case is more likely than the defendant’s. The plaintiff must show that his or her case is more likely than not (Jackson v Lithgow City Council [2008] NSWCA 312 at [9]-[10] per Allsop P[14].

Conclusion

[14] See also SGRO V AAMI Ltd referred to earlier at [44].

I am not satisfied on the balance of probabilities that the plaintiff has established that an accident occurred in which as a result of a BMW having stopped unexpectedly in front of him he struck the rear of the BMW causing damage to his car.

The technical evidence relied on by the plaintiff from Dr Rechnitzer contemplates the plaintiff having had an accident without the airbags of his car deploying but his analysis requires an acceptance by me and a satisfaction of variations in regard to the movements of both vehicles that is contradictory to the plaintiff’s evidence about his own speed and moreover the other vehicle which the maintained had stopped. The facts assumed by Dr Rechnitzer and used in part on his analysis of the delta V that would offer an acceptable explanation for the airbags not deploying did therefore depend upon an account of the accident given to him by the plaintiff. To not be satisfied about such variations as result from evidence of the plaintiff has the result, as Dr Rechnitzer acknowledged, that the airbag system should have deployed. His explanations why the system did not operate is that the airbag system was faulty. However, it requires something more than this – it requires as well the warning display light not operating at the critical time. I am not persuaded of the likelihood of that concurrence of circumstances. The plaintiff saw no light that should display in the event of an airbag fault. Furthermore, Mr Edgerton found the light operation in the plaintiff’s damage vehicle. Therefore, the only additional explanation offered is that Mr Edgerton did not read the results correctly or the data entered was wrong and that Mr Edgerton failed to apply a sufficient forensic rigour to the results he obtained from the crash data retrieval process. I have already rejected the existence of any evidentiary foundation to support that submission.

Although I found both expert witnesses informative and I am satisfied that they discharged their tasks as expert conformably with their duties to the court, I found Mr Edgerton’s report and the provision of the information derived from the interrogation undertaken of the crash data retrieval system very persuasive. I am satisfied that he excluded the reasonably probable explanations of the vehicle suffering a combination of system faults such as to otherwise account for the non-deployment and that he identified the more probable explanation to be that the ignition was off at the time the damage was suffered to the plaintiff’s vehicle. Hence I am satisfied that the plaintiff’s account of the accident was false. I am satisfied of that finding bearing in mind the seriousness of the allegation.

The absence of the other driver Mr Fagnani whose evidence one would have expected the plaintiff to have adduced in order to support place and time and that he was stopped is a significant evidentiary omission. No evidence was adduced, for example, of efforts made of even the most cursory type to the solicitors who issued the Magistrates’ Court Complaint in his name against the defendant[15].

[15] Ex P4

The absence of the plaintiff’s brother in law to corroborate the price paid for the vehicle and for which sum the vehicle was insured in the first place is a further significant evidentiary omission. The plaintiff’s attempt to reconcile his evidence in court with his responses to the defendant when investigating the claim relating to the purchase of it and the repayment of his brother as well as the cost of accessories was not persuasive.
I am satisfied that the plaintiff gave false statements to his insurer that his vehicle had been involved in a rear end collision with a BMW on the date and place in question. I am satisfied that at the time the plaintiff’s vehicle was impacted it was stationary and its ignition was not engaged. I am satisfied that wherever that occurred, that on balance, it did not occur on Mahoney’s Road. I am satisfied that the plaintiff was aware that the vehicle was brought to that place already damaged but I am unable to say whether he did so alone or in concert with someone else. It is not necessary for me to find where the assault on the plaintiff’s car occurred other than that I am satisfied it did not occur at the scene. I am satisfied that no efforts were made by the plaintiff to secure the attendance of Mr Fagnani and that the attempt to belatedly do so should be viewed with scepticism. If I am wrong about that I would nonetheless be satisfied by the evidence of Mr Edgerton that the data retrieval belies the plaintiff’s vehicle having been engaged with its ignition at the time the damage was inflicted.

Much of the evidence given by the plaintiff and the answers given to the investigator I find were false. I find they contradict evidence the plaintiff gave in court but not all of his discordant and contradictory evidence should be seen as being given in order to induce the defendant to meet his claim. However, his response to the defendant that the ignition was on when the accident occurred was false and it was made as part of his intent to have the defendant meet his insurance claim.

I do not make a finding of fraud. As I have pointed out at the beginning of my reasons, an allegation of fraud was not pleaded by way of the defence to the proceeding. However, I am satisfied, and I find, that the defendant has established the facts necessary for it to avoid the policy by reason of the making of a false account to it by the plaintiff for the aforementioned purpose and the giving of a false account to the defendant as part of the investigation of the claim in furtherance of that end.

Section 13 of the Insurance Contracts Act was relied on by the defendant. It is expressed as follows:

The duty of the utmost good faith
(1) A contract of insurance is a contract based on the utmost good faith and there is implied in such a contract a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith.
(2) A failure by a party to a contract of insurance to comply with the provision implied in the contract by subsection (1) is a breach of the requirements of this Act.
(3) A reference in this section to a party to a contract of insurance includes a reference to a third party beneficiary under the contract.
(4) This section applies in relation to a third party beneficiary under a contract of insurance only after the contract is entered into.

In addition the defendant relied on the policy wording of the contract of insurance that allows a claim to be avoided in the event, as I have found is the case, the plaintiff was not truthful or frank in any statement he made in connection with a claim on the policy. I am satisfied that the plaintiff gave a false account of the occurrence of an accident alleged to have occurred on 6 July 2014 and that the false account was made in connection with the claim made on his policy of insurance with the defendant and as such the defendant has established the basis to avoid the claim and furthermore the plaintiff was in breach of his obligation of the utmost good faith to which he was contractually bound under the policy of insurance.

For the reasons expressed the plaintiff’s claim is dismissed. I will hear the parties on the question of costs.