Issa v Australian Alliance Insurance Company Limited t/as Shannons Insurance

[2016] NSWSC 1320

Supreme Court

New South Wales

Medium Neutral Citation:

Issa v Australian Alliance Insurance Company Limited t/as Shannons Insurance [2016] NSWSC 1320

Hearing dates:

14 June 2016

Date of orders:

20 September 2016

Decision date:

20 September 2016

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) Leave to appeal is refused.

 

(2) The appeal is dismissed.

 

(3) The decision of Magistrate Curran dated 9 September 2015 is affirmed.

 

(4) The amended summons filed 31 December 2015 is dismissed.

 (5) The plaintiffs are to pay the defendant’s costs on an ordinary basis as agreed or assessed.

Catchwords:

APPEAL – Local Court – insurance claim – lay evidence of collision at odds with experts’ evidence – without intent – no point of principle

Legislation Cited:

Evidence Act 1995 (NSW)
Local Court Act 2007 (NSW)

Cases Cited:

Be Financial Pty Ltd v Das [2012] NSWCA 164
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bradley v Matloob [2015] NSWCA 239
Bradshaw v McEwens Pty Ltd (High Court of Australia, 27 April 1951, unrep)
Browne v Dunn (1893) 6 R 671
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773
Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366
Holloway v McFeeters (1956) 94 CLR 470
Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
Pollard v RRR Corporation Pty Limited [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Tolson v Roads and Maritime Services [2014] NSWCA 161
Vidal v NRMA Insurance Ltd [2005] NSWCA 390

Texts Cited:

S Odgers, Uniform Evidence Law, EA 46.60 (last review: 4/4/2016)

Category:

Principal judgment

Parties:

Peter Issa (First Plaintiff)
Eva Issa (Second Plaintiff)
Australian Alliance Insurance Company Limited t/as Shannons Insurance (Defendant)

Representation:

Counsel:
J O’Connor (Plaintiffs)
B Burke (Defendant)

  Solicitors:
Barrak Lawyers (Plaintiffs)
Courtenay & Co Solicitors (Defendant)

File Number(s):

2015/292489

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Civil

Citation:

Nil

Date of Decision:

9 September 2015

Before:

G Curran LCM

File Number(s):

2013/274126

Judgment

1. HER HONOUR: By amended summons filed 31 December 2015, the first and second plaintiffs seek orders that firstly, the appeal be allowed; secondly, that the judgment and orders made by the Magistrate on 9 September 2015 be set aside; thirdly, that this Court make the orders sought in the Local Court statement of claim; and finally, costs orders.

2. The first plaintiff is Peter Issa and the second plaintiff is Eva Issa. They were the first and second plaintiffs in the Local Court proceedings. I shall refer to them in this judgment as the plaintiffs except where I refer to them individually. The defendant is Australian Alliance Insurance Company Limited t/as Shannons Insurance, who was the defendant in the Local Court proceedings.

3. The first and second plaintiffs relied upon the affidavit of their solicitor Benjamin Barrak dated 26 November 2015. It exhibits five volumes of documents filed in the proceedings in the Local Court (“BB1”). Both parties provided written submissions.

The appeal

4. Section 39(1) of the Local Court Act2007 (NSW) provides that a party to proceedings who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.

5. Section 40(1) of the Local Court Act provides that a party to proceedings who is dissatisfied with a judgment or order of the Local Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

6. Section 41 of the Local Court Act provides that this Court may determine an appeal made under ss 39(1) or 40(1) either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court’s directions, or (d) by dismissing the appeal.

7. In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. This appeal mainly seeks to overturn unfavourable findings of fact made in the Local Court.

8. The main grounds of appeal are contained in paragraph [1] of the amended summons. They can be summarised as grounds (1)(c) and (d), “without intent”; ground (1)(e), “failure to make findings of fact – lay evidence”; ground (1)(f), “non application of the rule in Browne v Dunn (1893) 6 R 671”; and ground (1)(g), “failure to consider Dr White’s evidence”. Grounds (1)(a) and (b) were not pressed. The plaintiffs’ submissions address wider issues than those raised in the amended summons.

9. So far as grounds of appeal involving questions of mixed fact and law are concerned, they are set out at paragraph [2] of the amended summons. They too are numerous and some merely repeat those set out under paragraph [1]. Leave is required to argue these grounds and I will deal with this topic after I consider the questions of law raised by the plaintiffs.

10. I shall start with briefly setting out the pleading framework in the Local Court and then the hearing.

The pleading framework

11. By statement of claim filed 10 September 2013 in the Local Court, Downing Centre, Sydney the plaintiffs, who are husband and wife and owners of a Mercedes Benz motor vehicle, sought a declaration that they are entitled to be indemnified by the defendant in respect of their loss due to the motor vehicle accident and an order that the insurer pay the plaintiffs the amount of their loss arising from the motor vehicle accident, being the sum of $29,050.62, together with interest and costs.

12. By defence filed 21 October 2013, the defendant relevantly pleaded:

“5   In answer to the whole of the plaintiffs’ statement of claim the defendant states that the first plaintiff has made false statements in support of the claim and that pursuant to section 56(1) of the Insurance Contracts Act 1984 (Commonwealth) (“ICA”) that it is entitled to refuse to pay the claim.

PARTICULARS OF FALSE STATEMENTS

6   In relation to the claim of the plaintiffs the defendant says:

(a)   On 27 November 2012 the first plaintiff advised the defendant that he was heading towards a Toyota Corolla being driven by Amer Odisho who stopped to let someone out, that he stopped behind that vehicle and that the car behind him a Toyota Hilux being driven by Charbel Andary ran into the back of his vehicle and pushed his vehicle into the rear of the car to the front.

(b)   The defendant says that this is untrue and that:

(a)   The Toyota Corolla reversed into the first and second plaintiffs’ Mercedes;

(b)   At the time of the impact or impacts between the blue Mercedes and the Toyota Corolla and the Toyota Hilux that:

i.   The First Plaintiff was not driving nor was he within the interior of the blue Mercedes;

ii   The engine of the blue Mercedes was turned off; and

iii.   The damage to the vehicles was staged for the purpose of making and pressing a fraudulent insurance claim.”

The hearing in the Local Court

13. Both parties were represented by counsel; the plaintiffs by Mr Salamon and the defendant by Mr Burke.

14. The proceedings were heard in the Local Court by Magistrate G Curran (“the Magistrate”) over 10 days, namely 12 May 2014, 23, 24, 25, 26 October 2014, 9, 10, 11 March 2015 and 17, 18 June 2015. On 9 September 2015, the Magistrate handed down written reasons for his decision. His Honour entered a verdict in favour of the defendant.

15. The plaintiffs relied upon two affidavits of Mr Issa sworn 13 April 2014 and 9 May 2014 (Ex 1), the affidavit of their son, Michael Issa sworn 2 May 2014 (Ex 13), the affidavit of Amer Shaba Odisho (“Mr Odisho”) sworn 10 April 2014 (Ex 7), the affidavit of Charbel Andary (“Mr Andary”) sworn 8 April 2014 (Ex 11), the report of Dr Timothy White dated 11 April 2014 and his supplementary report dated 4 May 2014 (Ex 24), and the joint expert report dated 29 April 2014 (Ex 27). The defendant relied upon the affidavit of Nathan Wroe (the investigator) sworn 8 April 2014 and the experts reports of Ross Cracknell dated 17 February 2013 (Ex 25) and Nigel McDonald dated 28 February 2013 and 8 May 2014 (Ex 26). The experts wrote a joint report and gave conclave evidence. I have omitted the evidence of the tow truck driver and Mr Murphy as nothing turns on their evidence. All witnesses gave evidence and were cross examined with the exception of Ms Mary Andary as she no longer lives in Australia. Ms Andary is Mr Andary’s sister who was a passenger in his vehicle at the time of the collision. Her record of interview with the investigator was tendered.

The plaintiffs’ case

16. Mr Issa’s evidence is that at about 5.00 pm on 27 November 2012, during peak hour traffic, he was driving a dark blue Mercedes (registration number BPL XXX) (“the Mercedes”) along Woodville Road, Villawood behind a Corolla motor vehicle (registration number BHC XXX) (“the Corolla”) being driven by Mr Odisho. Mrs Issa was a passenger in the Mercedes. An unknown vehicle exited from a side street, Seville Street, onto Woodville Road in front of the Corolla without giving way, causing the Corolla to come to a sudden stop. Mr Issa was forced to brake suddenly to avoid colliding into the rear of the Corolla and came to a stop. However a third vehicle following the Mercedes, a Toyota Hilux (registration Number AW XXXX) (“the Hilux”) being driven by Mr Andary collided into the rear of the Mercedes, which forced the front of the Mercedes to collide into the rear of the Corolla. Woodville Road, Villawood is a major 6 lane/4 lane road.

17. As a result of the collision, the rear of the Corolla was damaged, the front and rear of the Mercedes was damaged and the front of the Hilux was damaged. The plaintiffs submitted a claim to the defendant under the insurance policy which the plaintiffs had with the defendant to recover the value for which the Mercedes was insured with the defendant, namely $26,900. The defendant rejected the plaintiffs’ claim on the basis that the defendant alleged the collision was staged for the purposes of the plaintiffs committing a fraud against the defendant.

Consideration of Vidal v NRMA Insurance Ltd [2005] NSWCA 390

18. At trial, the defendant ran its case on the basis that the plaintiffs were put to proof in a manner similar to the defendant in Vidal v NRMA Insurance Ltd [2005] NSWCA 390 (“Vidal”).

19. In Vidal, at trial the plaintiff sought to prove her car was stolen. Although the plaintiff in that case gave evidence the car was stolen without her knowledge or involvement and despite the fact the trial judge found the plaintiff to be a witness of truth, the trial judge found the plaintiff had not proven the car was stolen without the plaintiff’s knowledge or involvement. The Court of Appeal considered the position that arises where an insurer puts a plaintiff to proof and also propounds a positive case which is contrary to the case of the plaintiff.

20. In Vidal, Handley JA (with whom Mason P and Brownie AJA agreed) stated (at [12], [14], [15] and [16]):

“12 In my judgment the Magistrate’s finding in para 6(1) that the plaintiff was “a witness of truth” was a limited or qualified finding. She did not make a finding that the plaintiff's evidence was reliable and should be accepted as establishing the truth. In order to determine the case she undertook a further examination of the expert evidence and made further findings. Having completed that task she then made her ultimate finding that the plaintiff had not proved on the civil onus that her car was stolen.

…

14 Some of the problems in this case arose because the insurer pleaded defences by way of confession and avoidance under which it had the onus of proof. In reality they were the mirror image of the plaintiff’s claim, on which she had the onus, that her vehicle had been stolen, that is, removed without her consent or connivance.

15 Sometimes an insurer simply puts the insured to proof without having a positive case. At other times, such as here, the insurer may have a positive case, what may be described as a negative pregnant. An insurer is fully entitled to run a positive case, without undertaking anything more than an evidentiary burden of displacing the plaintiff's prima facie case. The question was considered and explained by the House of Lords in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948. This was a marine insurance case where the underwriters denied that the ship had been lost by perils of the sea, and sought to prove that she had been scuttled. Lord Brandon said at 951:

“... it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on a balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on a balance of probabilities, the truth of their alternative case.

The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay on them.”

16 This statement applies, with appropriate modifications, to insurance claims for theft, fire and the like.”

21. In his written reasons for his decision, the Magistrate adopted a structured approach similar to Vidal. In his reasoning his Honour firstly, reviewed the lay evidence; secondly, reviewed the expert evidence; thirdly, attempted to reconcile the lay and expert evidence; and finally, made his decision based on the whole of the evidence.

22. So far as the lay evidence is concerned, the Magistrate set out the lay witnesses’ evidence and identified the findings he would make if his decision was based on that lay evidence alone (J [26] to [44]), then drew his conclusions (J [45] to [55]).

23. At [45] his Honour’s conclusions in relation to the lay evidence are as follows:

“CONCLUSIONS ON THE LAY EVIDENCE AS TO THE EVENTS

45 There are problems with consistency in the evidence deposed to by each of the three drivers. I have already referred to this. These inconsistencies are apparent from comparing the two sources of their evidence, mainly the evidence that each of them gave in court during the 23 and 24 September 2014, and the evidence that is in the transcript of interviews that each had with Mr Rowe over the period 16 December 2012 to the 12 January 2013, and in the case of Ms Andary, in April 2013. These interviews in time were proximate to the date of the event. There is some broad consistency in accounts given by each of these witnesses, but where these are inconsistent, it is confusing, particularly in relation to the details as to the dynamics of the accident. On the collective evidence, all the vehicles, at some stage, were on Woodville Road and were behind each other. The driver of the Corolla, Mr Odiso, was in front of the other two. All were travelling within the speed level of 70 kms per hour. Mr Odiso stopped suddenly to avoid collision with the car entering upon Woodville Road supposedly from Seville Street. Mr Issa, the driver of the Mercedes motor vehicle, stopped. He did not at that stage collide with the rear of the Corolla. However, Mr Andary, who was the third in line did not have sufficient time to stop and ran into the rear of Mr Issa's car. In turn, Mr Issa's motor vehicle by force of the impact, was pushed forward and into the rear of Mr Odiso’s vehicle.”

24. At [46], the Magistrate stated that he was satisfied on the balance of probabilities that all three vehicles involved in the accident were eventually on Seville Street after the accident and that the damage sustained by each vehicle occurred in an event on Woodville Road, sometime around 5.00 pm on 27 November 2012.

25. From [47] to [51], the Magistrate set out the inconsistencies in the lay witnesses’ evidence. His Honour indicated that the “main area of inconsistency” in the three drivers’ evidence concerned the actual location of the incident. His Honour referred to “confusion” in Mr Issa’s evidence, which he considered “puzzling”, where Mr Issa originally said the accident occurred on the corner of Woodville and a street “well to the south of the intersection with Seville Street, probably Blackford Street”, yet his final evidence was that the accident occurred at the intersection of Woodville Road and Seville Street. (J [47]).

26. The Magistrate then referred to Mr Odisho’s evidence, which was inconsistent in respect of the direction he was travelling at the time of the accident and the location and direction of the intersection at which the accident occurred. The Magistrate also considered this evidence “puzzling”. (J [48]).

27. In analysing Mr Andary’s evidence, the Magistrate noted that although he (Mr Andary) located the accident as occurring near the intersection of Woodville Road and Seville Street, he gave differing accounts of the location of the accident in the course of the interview with Mr Rowe, the investigator. (J [49]).

28. According to the Magistrate, the lay witnesses’ evidence concerning how the cars were moved from Woodville Road into Seville Street after the collision was “not the subject of common evidence” between the lay witnesses. His Honour also noted the inconsistencies as to the movements of the vehicles prior to the arrival of the tow trucks. (J [50] to [51]).

29. At [52] to [53], the Magistrate stated:

“52. These confusions in my mind, at best, would mean that the powers of accurate recall of the three drivers has to be treated with some circumspection.

53. Despite these difficulties, the conclusion that I reach on their evidence on the balance of probabilities after endeavouring to make sense of it, would be as follows: -

1) An event did occur on Woodville Road, probably near the intersection of Seville Street, sometime around 5pm on 27 November 2014.

2) The event involved a collision between three motor vehicles being driven by Mr Odiso, which was first in line, then the Mercedes Benz being driven by Mr Peter Issa, next in line, and finally, the Hi-Lux utility being driven by Mr Andary.”

30. Finally, the Magistrate noted that all three drivers said that they did not know each other before the accident and there was no evidence before the court to the contrary. (J [55]).

Expert evidence

31. The Magistrate then addressed the experts’ evidence and analysed it in a similar manner as he did with the lay evidence. (J [56]-[71]). It is convenient that I briefly set out the experts’ evidence before I refer to his Honour’s conclusions in relation to that evidence. As previously stated, the plaintiff relied on the expert report of Dr White, forensic mechanical engineer and the insurer relied on the expert reports of Mr Cracknell, automotive technical consultant and of Mr McDonald, associate forensic investigator. Mr McDonald was the only expert who actually examined the Corolla from which an Event Data Recorder (“EDR”) had been retrieved.

31. There are two important issues raised by the experts. One is the significance of the recording on the Corolla’s EDR and the other is the significance of the “hot shot” evidence.

(1)   The EDR opinion

33. On 11 February 2013, Mr Cracknell inspected the Mercedes. In his report dated 17 February 2013, Mr Cracknell noted the absence of any abrasive or scrape markings around the outer forward circumferential edge of the engine serpentine (exemplar) belt that he says would have been expected if the engine was running when items such as the radiator fan and drive pulley and the radiator core were forced rearwards to the edge of the serpentine belt at the time of the collision to the front of the vehicle.

34. In their joint experts report dated 29 April 2014, the experts agreed that:

“… there is no way of confirming the location [of the accident] based on the physical evidence available.

…

The three impacts, involving changes in speed during impact of 18 km/h, 17 km/h and 8 km/h (in reverse chronological order). The work energy involved in the cumulative total of these three impacts is equivalent to one impact with a speed change of 26 km/h (16 miles per hour).

To place a speed change of 26 km/h in perspective, a speed change of 26 km/h would occur when a vehicle moving at 52 km/h strikes an equivalent mass stationary vehicle.” (Ex 27; BB1 Tab 9).

35. The defendant’s experts agreed that the plaintiffs’ Mercedes was switched off at the time of the accident. Mr White, the plaintiffs’ expert, did not. Dr White based his opinion on what he considered an amount of damage on the leading edge of the serpentine belt consistent with the belt having done a small number of revolutions as the engine stopped running more-or-less immediately after the collision.

36. However, during the conclave Dr White was shown a new Mercedes engine serpentine belt. The following exchange between Mr Burke, counsel for the defendant and Dr White took place:

“BURKE: Mr White, I’ll just ask you to have a quick look at that belt, and that displays a similar display of white stitches and then a lack of white stitches at various parts around the belt, similar to your photo on page 14, doesn’t it?

WHITE: Yes, it does.

BURKE: And so that actually could have been in that state even from brand new?

WHITE: Having now looked at this Exemplar Belt, yes, it could have.”

(T119.27-37, 9/3/2015).

37. In other words Dr White, having been shown a new exemplar belt conceded that the belt he examined in the Mercedes could have been in the same state as the exemplar belt from when it was brand new. The above concession meant that Dr White was no longer sure that the Mercedes was not switched off at the time of the accident.

38. Mr McDonald believed the extent of damage evident to the front of the Mercedes was inconsistent with non deployment of either the seat belt pretensioners or airbags and that the non deployment was therefore consistent with the ignition being off during a single impact.

39. Mr McDonald gave evidence that he was the one who removed the EDR from the Corolla at the time he examined it. (T41.47-48, 9/3/2015). He explained that the EDR (sometimes referred to as a crash data recorder (“CDR”)) recorded details of six impacts but only the most recent three were actually kept in the records. The EDR module controls the airbag deployment and seat belt pretensioners. In effect, he explained, the EDR is a computer which has some programming and an accelerometer in it. It detects any accelerations experienced by the vehicle. When it is above a particular trigger level it will record data of the acceleration that it has experienced together with data that it has obtained from other modules within the vehicle. (T41-T43, 9/3/2015).

40. Mr McDonald explained that when airbags are deployed and seat belt pretensioners are activated the data will be recorded and cannot be overwritten. These are known as “locked events”. There are only three spaces in which events can be recorded. Conversely if there is a minor collision where the airbags are not deployed and the seat belt pretensioners are not activated, then these events are “unlocked events” and can be overwritten. The EDR keeps consecutive numbers for events. For example, there may be event 1, then 2, then 3. If event 4 subsequently occurs, it will overwrite one of the preceding events. The Corolla’s EDR module recorded events numbered 4, 5 and 6 as the three most recent collision events.

41. So far as the sequencing of events are concerned, during the conclave the following exchange took place between Mr Burke, counsel for the insurer, and Dr White:

“BURKE: What you’re putting, Dr White, is entirely consistent with – or it would indicate, I think you’re saying, that the front car, the Corolla in this case, we know it’s the Corolla, has reversed into something and that car has been carried back with the Corolla in event 4?

WHITE: Yes.

BURKE: And in event 5, when it has reversed into something, be it the same object or not, if it were the same object when it has hit that second object, that second object may have been against something else or something of that type, so it couldn’t move back any further, and the same in event number 6, when the Corolla hit whatever it hit in event 6, that whatever it hit behind it couldn’t move. So it’s consistent with the Corolla reversing into something and dislodging it and pushing it against something else, and then the second time, event 5, the Corolla reverses into it but it’s still against whatever it hit the first time and so it can’t move any further. And event number 6 the same, it reverses into whatever it hit and that thing again can’t move because it has hit something else or become lodged somehow and so again we see that rapid deceleration.

WHITE: That is a possible scenario, yes.” (T81.42-50; T82.1-12, 9/3/2015).

42. In other words, Dr White accepted that the scenario set out by Mr Burke is one that is “possible”. This is relevant to appeal ground (1)(g). That is, Dr White accepted that the three events could have occurred in succession in the same course of events, which is in accordance with Mr McDonald’s opinion.

(2)   Hot shock opinion

43. Mr McDonald of Accident Investigation Services Pty Limited provided two reports dated 26 February 2013 (BB1 Tab 27) and 8 May 2014 (BB1 Tab 29). In his report of 26 February 2013, Mr McDonald had this to say about the tail light examinations of the Mercedes at [25] and the Corolla at [32.2]:

“25. Tail Lamp Examinations. The vehicle’s nearside tail light assembly sustained direct contact damage, however all globes envelopes were found to be intact. The offside tail light assembly was intact and all globe envelopes were found to be intact, although collision damage has dislodged the assembly. Examination of the individual globes revealed that all filaments were unremarkable. Given the proximity of the tail light assemblies to the area of impact, and the jolt received during impact, the condition of the filaments is considered to be indicative of none of the vehicle’s tail lights (being either tail, brake, indicator or reversing) being illuminated at the time of impact.

…

32.2 The data present in the CDR report from the Toyota Corolla is compatible with the physical evidence…”

44. Mr McDonald’s view is that at the time of the accident, the Mercedes did not have its tail lights illuminated and the Corolla did have its reversing lamp on. Neither Dr White nor Mr Cracknell commented about the tail light of the Corolla in their reports, nor was it mentioned in the joint report.

45. At the hearing conclave, Mr McDonald gave evidence that the Corolla showed hot shock in one of its reversing globes. He explained that hot shock occurs when a globe is illuminated and the metal filament becomes very hot, causing the hot metal to become ductile. (T83.16-18, 9/3/2015). Ductile was explained in lay terms as meaning “stretchy”, so that when the filament impacts something it stretches and distorts to show that it was on at impact. Mr McDonald said the reverse globe shows it was on at impact. If it were to break with a jagged edge, it would be called “cold shock”. It would be a brittle failure, indicating that that globe was not on at impact. Mr McDonald said that “what we have is hot shock in the globe, showing that the globe stretched and deformed during impact.” (T83.22.28, 9/3/2015).

46. Dr White considered it “strange” that only one of the two reversing light bulbs showed hot shock and that he would expect to see both bulbs, if they were illuminated, to show hot shock. He then referred to the EDR events showing that the brakes were on in two of the three events, meaning, on the balance of probabilities, he would expect to see hot shock in both bulbs, rather than just in the bulb on one side, particularly given that the impacts “were more or less full overlap impacts, so the cars were pretty much directly in line with each other.” (T84.9-18, 9/3/2015).

47. Mr McDonald’s evidence was that for the brake lights to experience hot shock, they had to be close enough to the point of contact in that particular collision when they were on, just the same way that the reverse globe had to be close enough to the point of contact in that particular collision. (T85.9-13, 9/3/2015). Mr McDonald gave the following example:

“… two cars meeting bumper to bumper and not crushing the actual panel that the brake lights sits within, would not produce hot shock in that globe, because it’s quite removed and there’s not enough change of speed or acceleration or jolt experienced by that globe to produce it. So the absence of hot shock in the brake, in any one impact, is essentially inconclusive.” (T85.13.18, 9/3/2015).

48. As I understand Mr McDonald’s evidence, he is saying that the absence of evidence of hot shock in the brake lights is inconclusive because the actual panel that the brake light sits in was not crushed.

49. Mr McDonald noted that the brake lights did show cold shock which occurred during one of the collisions. He accepted that the damage that he observed to both the reverse and brake lights is consistent with a series of impacts. (T85.43-47, 9/3/2015).

50. On this issue, Mr Cracknell did not express an opinion as he only examined the Mercedes. (T55.9, 9/3/2015).

51. At [72] and [73] of his written reasons, his Honour set out his conclusions in relation to the expert evidence as follows:

“Conclusions on the Expert Evidence

72 I found, for reasons indicated, that on the balance of probabilities the EDR attached to the Corolla was that which was examined after the alleged accident and it was the EDR that was present in the Corolla at the time of the events on 27 November.

73 This being the case, a number of conclusions can be reached on the expert evidence;-

1) The sixth event recorded on the EDR is not the result of one impact to the Corolla sufficient to explain the extent of the damage done to the Corolla.

2) Examination of the damage done to the Mercedes and the Corolla is consistent with a significant impact between the front of the Mercedes and the rear of the Corolla which would be consistent with the evidence of the three drivers. However, the undisputed expert evidence is that none of those last three events were locked events.

3) The damage to both cars that is the Corolla and the Mercedes, is consistent with what the events that the EDR disclosed and in particular when the events 4,5, and 6 are combined. If these occurred a short time apart, then those three events are sufficient to explain the damage that was found on the two motor vehicles. These three events if considered separately are not sufficient to explain the damage done to the motor vehicles, given that separately they were not of sufficient force. However, in combination they do disclose sufficient force to explain the damage.

4) The EDR shows that these events all occurred when the Corolla was in reverse.

5) The last conclusion is consistent with the finding associated with the examination of the reverse light filaments in the Corolla, namely, that the Corolla was in reverse when the collision occurred, with the reverse lights illuminated.”

52. At [74] and [75] of his written reasons, his Honour set out his conclusions based upon the whole of the evidence as follows:

“COMPARING THE LAY EVIDENCE OF THE THREE DRIVERS WITH THE EXPERT EVIDENCE

74 I have set out the version of events given by each of the three drivers. The evidence of these drivers is that most if not all of the damage observed on the three cars arose out of the one event at Woodville Road. The evidence of all the drivers is consistent with rear end collisions of some force. It is not consistent with the Corolla reversing at the time of the collision, the reversing being into the front of the Mercedes. The evidence in particular of Mr Issa, and Mr Odiso is definitely not consistent with three collisions occurring whilst the Corolla was in reverse. The only explanation for the level of damage to both the Mercedes and the Corolla, when considering the recording in the EDR is that the damage occurred in possibly three events, if not probably so, one after the other whilst the Corolla was in reverse. However I cannot conclude this on the balance of probabilities.

CONCLUSION

75 This leaves me in a very invidious position on the evidence. I have set out the evidence of the three drivers, and the areas where they are consistent each with each other. I have indicated my concerns with the consistency and reliability of this evidence. However, their evidence on the dynamics of the event are not consistent with the conclusions I have reached on the expert evidence. There is no positive cross-correlation between the drivers' description of the mechanism of the accident, and the conclusions that I have reached in relation to the expert evidence. This is perplexing. It does not establish positively that there has been fraud or any deliberate dishonesty on the part of any of three drivers in relation to the way in which the events occurred, even though I have misgivings about their evidence in this regard. In particular, I cannot conclude the plaintiffs have been involved in a fraudulent claim in a positive sense. However as I said much earlier in these reasons, I have to be satisfied on the balance of probabilities, that the event is one “without intent”. The overall thrust of the three drivers description of the event is consistent with the events being one without intent, even if there are significant inconsistencies as to their description of what occurred, not only when comparing one of the driver's evidence with the other driver’s evidence, but also looking at internal inconsistencies with each drivers’ evidence. However, the conclusions that I have reached in relation to the expert evidence are not consistent with the description of the events given by the drivers. Indeed, the conclusions I have reached in relation to the expert opinion are suggestive of possibly a staged event. But whilst I am not satisfied on the balance of probabilities that in fact this was a staged event, this is not something which I have to be satisfied of before the plaintiffs’ claim fails. The plaintiffs' claim fails if I am not satisfied on the balance of probabilities that this was an event “without intent”. Given the conflicts in the evidence, I am not satisfied that the plaintiff has proved its case in this regard on the balance of probabilities. That being the case, the plaintiffs’ claim must fail.”

53. Before I consider the grounds of appeal, the plaintiff relied upon a passage from Tolson v Roads and Maritime Services [2014] NSWCA 161 (“Tolson”) where Basten JA (with whom Beazley P and Preston CJ of LEC agreed) referred to challenges on appeal to the fact finding exercise undertaken by the trial judge.

54. In Tolson, Basten JA at [53] stated:

“53 These challenges were directed to the fact-finding exercise undertaken by the trial judge. In order to demonstrate that they involved an erroneous decision on a question of law, the appellants were confronted with the authority of this Court that a finding of fact which could be characterised as “perverse” or “illogical” does not raise a point of law: Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139 at 156-157 (Glass JA, Samuels JA agreeing). However, as the Court has subsequently noted, an erroneous finding of fact may demonstrate a basic misunderstanding of the case brought by the claimant, so as to demonstrate that the tribunal has failed to address and determine the issues before it and has thus failed to exercise its jurisdiction: State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12]. It is therefore necessary to consider whether an error of this kind has been established in the present case.”

55. Counsel for the plaintiffs made extensive submissions cast in several different ways. Essentially, the plaintiffs’ argument is that the Magistrate should have found that the plaintiffs had proven their case because he accepted parts of the evidence of the plaintiffs and the lay witnesses. The appeal in Vidal was based on a similar argument.

56. There were also submissions by the plaintiffs’ counsel to the effect that the Magistrate did not provide adequate reasons and reference is made to what the plaintiffs consider to be failings in this regard.

57. It is not in dispute that a Magistrate is obliged to provide adequate reasons and to not do so may constitute an error of law: see Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 (“Stoker”) at [41] per Santow JA.

58. In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, Meagher JA at 442 stated:

“A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills Arbitration [1964] 2 QB 467 at 478. This court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost”.

59. In Stoker, Santow JA at [41] said that “[i]t is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.” However, in Pollard v RRR Corporation Pty Limited [2009] NSWCA 110, McColl JA (with whom Ipp JA and Bryson AJA agreed) stated:

“The extent and the content of reasons will depend upon the particular case under consideration and the matters in issue… While a judge is not obliged to spell out every detail of the process of reasoning to a finding…, it is essential to expose the reasons for resolving a point critical to the contest between the parties”. (References omitted.)

60. In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, McHugh JA at 281 stated:

“In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough if the decision simply turned on the plaintiff’s credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff’s case, such a simple finding would not be enough.”

61. Finally, the parties referred to Bradley v Matloob [2015] NSWCA 239 (“Bradley”) where the Court of Appeal (McColl and Leeming JJA and Beech-Jones J agreeing) at [6] to [9] (per McColl JA), [13], [17] and [18] (per Leeming JA) stated:

“6 Counsel for Mr Bradley clearly raised in closing submissions the failure of counsel for the plaintiff and the Nominal Defendant to challenge the truth of his evidence. The primary judge did not deal with it in his reasons, in which he effectively found that Mr Bradley had perjured himself. The rule in Browne v Dunn, being one of fairness, applied equally to the primary judge as to counsel.

7 Although non-compliance with the rule in Browne v Dunn does not mean that the court is obliged to accept the evidence of the witness in question, for example where the evidence is inherently illogical or unreliable, or where the opposing party calls evidence of a substantial nature directly contradicting the evidence on which there was no cross-examination, in many cases it would be wrong, unreasonable or even perverse to reject evidence upon which there has been no relevant cross-examination.

8 In this case, despite the compelling circumstantial case to which Mr Rewell pointed, Mr Bradley’s evidence was not inherently illogical or unreliable, particularly when one has regard to the evidence the Nominal Defendant apparently accepted (it having extracted his agreement with it in cross-examination) that Mr Bradley would have been “well and truly aware” of coming “within a metre of an oncoming car as [he] made a right hand turn.”

9 It is clear in the circumstances that the primary judge’s failure to deal with that issue means the process of fact finding has miscarried. As the Nominal Defendant conducted the trial on the basis of not directly challenging Mr Bradley’s denial of being the “at fault” driver, I agree that there is no substantial wrong or miscarriage warranting a retrial.

…

13 Mr Bradley was the last witness. The Nominal Defendant cross-examined after the plaintiff. The cross-examination of Mr Bradley by the Nominal Defendant had proceeded on the basis that if he had been the driver who caused the accident, he “would well and truly be aware of” Ms Matloob’s vehicle. The Nominal Defendant did not put to Mr Bradley that he was lying. Nor had the plaintiff. That necessarily meant that the trial judge could not, as a matter of basic procedural fairness, reach any such conclusion: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [67]. The third sub-issue (c) identified above had to be resolved favourably to Mr Bradley.

…

17 It is well established that where there is a real conflict in the evidence, it is necessary to “engage with, or grapple or wrestle with the cases presented by each party”: see for example Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], Coote v Kelly [2013] NSWCA 357 at [39]-[52] and Keith v Gal [2013] NSWCA 339 at [109]-[119]. As was said in Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 at [53], the point of the metaphor of “grappling” is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]. There are two overlapping reasons for this. The first appears from the often quoted statement by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:

‘Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.’

18 The second emerges from the opening paragraph of the joint reasons of Mason P, Ipp and Tobias JJA in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [1]:

‘[J]udges’ duties to give reasons are, or should be, permanently engraved in the minds of all judicial officers. These duties are designed to ensure that a judge wrestles adequately with the issues in the case, to enable appellate accountability and to provide basic fairness to the losing party.’”

62. Paragraphs [6] to [9] and [13] of Bradley are relevant to the rule in Browne v Dunn, which is raised in appeal ground (1)(f). So far as sufficient reasons are concerned, [17] and [18] of Bradley are relevant.

63. The issue here is whether the Magistrate engaged or grappled or wrestled with the cases presented by each party.

(1)(c) and (1)(d) Without intent

64. So far as ground 1(c) is concerned, the plaintiffs submitted that the Magistrate erred in firstly, finding that the plaintiffs failed to prove on the balance of probabilities that the accident was without intent; and secondly, failing to have proper regard to all the evidence in finding that the plaintiffs failed to prove on the balance of probabilities that the accident was without intent.

65. For the plaintiff to have succeeded, the court must be satisfied that the case has been proved on the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW).

66. On this topic the Magistrate referred to Vidal and Hammoud Brothers Pty Ltd v Insurance Australia Ltd [2004] NSWCA 366. The relevant passages in Vidal are [14] and [15], which I have already referred to above at [20] of this judgment.

67. In Hammoud, Bryson JA (with whom Ipp and Tobias JJA agreed) stated at [33]:

“33 That is to say, in his Lordship’s view, where the probabilities are equal, the party denying succeeds, although the denial appears to imply that a crime was committed. This passage was referred to with approval in Palamisto General Enterprises SA v Ocean Marine Insurance Co. Ltd [1972] 2 QB 625 at 636, and that passage in turn was referred to with approval in Simon v. NRMA Insurance Ltd (NSWCA, 22 October 1991, unrep.) Samuels AP at p7. The facts in Simon v NRMA Insurance Ltd have some general resemblance with the facts in the present case, but that decision does not in my view establish any principle which is not otherwise well established; its significance is its approval of the dictum of Branson J in Compania Naviera Vascongada.”

68. The Magistrate summarised these legal principles at [22] and [23] and then applied them at [24] as follows:

“22 These authorities are relevant to the approach to be adopted by the court in the case before it. The plaintiffs bear the onus of proving all the elements of their case, on the balance of probabilities. One such element is that the claim relates to the accident, and that the accident was “without intent”. The plaintiff does not evidentially have to establish this negative other than on the normal civil standard of the balance of probabilities.

23 The Plaintiff fails in this regard, if the court finds itself in a situation where the probabilities are equal: the party denying (the insurer) succeeds. If the plaintiff does establish this negative on the balance of probabilities, ie, that the claim was “without intent”, then, given that there is no evidence adduced other than the evidence that has been considered in reaching this conclusion, ie, that it was “without intent”, the defendant will fail.

24 At risk of being repetitive, the specific matters that are said to constitute the claim as a fraudulent one, are set out in paragraph 6 of the Statement of Defence that I have already set out. However, as has also been said, the defendant conceded it cannot positively prove any of these specific matters. Rather it says something more subtle, namely, that the evidence, taken as a whole, would allow the court to conclude that a matter has not been established on the balance of probabilities, ie. that the accident was “without intent”. The specific matters, or some of them, set out in paragraph 6, whilst not established on the evidence positively, are areas that would be sufficient to leave the court evenly balanced on the matter and hence, not able to conclude one way or the other. This is quite different to concluding there was fraud in a particular aspect of the facts basing the claim. It is a situation similar to that which the judge in Hammoud found himself in. For the defence, this is sufficient, because if that is the conclusion of the court, ie. that it is not satisfied on the balance of probabilities that the accident was “without intent and if the scales remain not in favour of one side or the other the defence succeeds.”

69. The plaintiffs’ case was that the Mercedes was damaged in an accidental collision involving the three vehicles. The issue the Magistrate had to determine was whether, having regard to all of the evidence, the plaintiffs proved on the balance of probabilities that the collision occurred in the way described by the first plaintiff. To determine that issue, the Magistrate had to consider evidence as to the cause of the collision between the three vehicles. Causation is a question of fact to be decided by the application of common sense to the facts of the case: see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 and Bennett v Minister of Community Welfare (1992) 176 CLR 408.

70. The plaintiffs submitted that, in order to succeed, they needed to establish circumstances raising a more probable inference in favour of what they alleged, but they had to do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture: see Jones v Dunkel (1959) 101 CLR 298 Dixon CJ at 304-305. The law does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. In Bradshaw v McEwens Pty Ltd (High Court of Australia, 27 April 1951, unrep), Williams, Webb and Taylor JJ, referring to Holloway v McFeeters (1956) 94 CLR 470 at 480-481, stated:

“By more probable is meant no more than that upon a balance of probability such an inference might reasonably be considered to have some greater degree of likelihood”.

Determination

71. While counsel for the plaintiffs has referred to the correct law in relation to the plaintiffs discharging their burden of proof and standard of proof, it does not follow that the Magistrate has to accept all of the evidence favourable to the plaintiffs. So far as the lay witnesses are concerned, the Magistrate carefully summarised each driver’s version of how the accident occurred, noting their inconsistencies and commenting on their credibility. His Honour compared each driver’s evidence given to Mr Nathan Rowe, the investigator shortly after the accident to the evidence each of them gave at the hearing. His Honour further analysed the consistencies and differences in the drivers’ evidence. All three drivers had non favourable findings as to their credibility.

72. The Magistrate had this to say about Mr Odisho’s credibility (at J [31]):

“In cross examination, he was questioned about the seeming confusion and contradictoriness of his evidence as to the location of the accident in reference to the intersecting roads. During the course of giving his evidence, I noted that he appeared to be evasive in relation to his answers, particularly when asked about the use of a Google map on his phone that is referred to in the record of interview with the investigator. He said during the course of his evidence before me that he could not recall using a Google map, but as I have said, the transcript of the interview with the investigator makes it obvious that he did indeed look at a Google map on his mobile phone during the course of the interview. …”

73. There were other criticisms of Mr Odisho’s evidence. The Magistrate concluded (at J [33]):

“Therefore, I am of the view that at the very least his evidence is of little value as is his credibility. In reaching this conclusion I have also taken into account his unsatisfactory evidence about whether or not his vehicle was moved off Woodville Road after the accident awaiting the arrival of the tow truck. It obviously was taken off the road, as the other witnesses attested to the fact that their own cars, along with his, were removed from Woodville Road, which stands to reason, given the time of day and the business of traffic on that road, which is a main thoroughfare.”

74. The Magistrate recorded that Mr Issa is a motor mechanic by trade. At trial the Magistrate stated that Mr Issa was suffering from a significant illness and he (Mr Issa) says that his current medication has effects on his memory. The Magistrate detailed Mr Issa’s version of the accident and noted his admitted dishonesty during cross examination. That is, Mr Issa conceded he had used certificates that were false to gain registration of the Mercedes at one time and conceded that in doing this he had been dishonest. The dishonesty involved the using of another car to run the tests required for registration of the Mercedes. (J [26]-[27]).

75. In relation to Mr Andary, the driver of the Hilux, the Magistrate also carefully summarised his version of the accident. Mr Andary was unsure of where the accident actually occurred, putting the two other cars in Seville Street. He too was an unimpressive witness. The Magistrate stated (at J [36]):

“When cross examined about some of the inconsistencies between the interview with the investigator when compared to the evidence that he had given in chief in court, he said that after so many questions he was beginning not to understand. This is in contradistinction to what I have noted after I heard the interview played in court. He also said in cross examination that the three drivers had helped each other push the cars off Woodville Road after the accident, somewhat different to the answers given to the investigator, especially in relation to his car remaining on Woodville Road until the tow trucks arrived. Again, the overall impression that I was left with after he had completed his evidence, when comparing the various seeming or apparent inconsistencies was that he was not a witness upon whose accuracy of recall one could put terribly much weight.”

76. The Magistrate analysed Ms Andary’s evidence contained in her recorded interview with the investigator and concluded (at J [42]):

“My view is that taken as a whole, her evidence is of little value. To describe the damage done to the Mercedes as “a scratch”, for instance, is inexplicable given the actual damage done to the vehicle as evidenced by the tendered photographs of the damage.”

77. The photos show the damage caused to the Mercedes was a lot more extensive than “a scratch”.

78. Finally, the Magistrate listened to the taped records of interviews of the drivers conducted by Mr Rowe. So far as the suggestion of the drivers all knowing each other is concerned, the Magistrate noted in reaching his decision that all three drivers say that they did not know each other prior to the event occurring and there is no evidence before the Court to the contrary. (J [55]).

79. His Honour was not obliged to accept all of their evidence in circumstances where it directly conflicted with that of the experts, particularly where some of their evidence was inconsistent with the statements provided to the investigator and their evidence in Court and where adverse findings of credit had been made in relation to each of the drivers of the three motor vehicles. The consistent parts of lay evidence as to how the accident occurred were at odds with the manner in which the experts said it did.

80. While I agree that the Magistrate was not satisfied on the balance of probabilities that in fact this was a staged event, he stated that this is not something which he has to be satisfied of before the plaintiffs’ case fails. In Vidal, the Magistrate made a limited or qualified finding that the plaintiff was a witness of truth. In these proceedings, the Magistrate did not make such a finding in relation to any of the drivers or the passenger, Mrs Issa. Nor did he make findings that the drivers of the three vehicles knew each other or that they were lying. His Honour was critical of the lay evidence, stating (at J [52]):

“These confusions in my mind, at best, would mean that the powers of inaccurate recall of the three drivers has to be treated with some circumspection.”

81. The defendant put the plaintiffs to proof. The defendant relied on evidence of experts to cast doubt on the plaintiffs’ version as to how the accident occurred. The plaintiffs bore the onus of proving all the elements of their case, two elements being that the claim relates to the accident and the accident was “without intent”. The Magistrate analysed both the lay evidence and the expert evidence and came to the conclusion that the experts’ evidence displaced the plaintiffs’ prime facie case. The plaintiffs did not discharge their onus of proof. As the Magistrate concluded (at J [75]):

“… The plaintiffs’ claim fails if I am not satisfied on the balance of probabilities that this was an event “without intent”. Given the conflicts in the evidence, I am not satisfied that the plaintiff has proved its case in this regard on the balance of probabilities. That being the case, the plaintiffs’ claim must fail.”

82. The Magistrate did not err. It is my view the Magistrate correctly applied the law. This ground of appeal fails.

(1)(e) Failure to make findings of fact – lay evidence

83. This ground of appeal is whether the Magistrate failed to exercise his jurisdiction, by reason of his failing to make findings of fact, based on the evidence of the lay witnesses, when considered collectively, as to how the accident in fact occurred. For the same reasons given under grounds (1)(c) and (d), the Magistrate did exercise his jurisdiction. His Honour recorded each witness’s version of how the accident occurred and made findings of fact when he stated that on the collective evidence, all the vehicles, at some stage, were on Woodville Road and were behind each other. The driver of the Corolla, Mr Odisho, was in front of the other two. All were travelling within the speed level of 70 kms per hour. Mr Odisho stopped suddenly to avoid a collision with the car entering upon Woodville Road supposedly from Seville Street. Mr Issa, the driver of the Mercedes, stopped. He did not at that stage collide with the rear of the Corolla. However, Mr Andary, who was the third in line did not have sufficient time to stop and ran into the rear of Mr Issa’s car. In turn, Mr Issa’s Mercedes, by force of the impact, was pushed forward and into the rear of Mr Odisho’s Corolla. The Magistrate then analysed these versions against his findings of fact in relation to the expert evidence and then came to his conclusion. His Honour’s obligation is not to accept all of the evidence of the witnesses that favours the plaintiffs’ case, but rather it is to grapple or wrestle with the case presented by both parties. The Magistrate did so.

84. So far as the plaintiffs’ allegation that the Magistrate did not make findings of fact, such as not referring to the light blue paint on the Mercedes discovered by Mr McDonald during his inspection, is concerned, it is not necessary for his Honour to deal with every conflict in the evidence, particularly where it has not been regarded as significant by the experts. It is my view that the Magistrate carefully grappled with the conflicting facts and issues raised by each party. His Honour provided sufficient reasons. This ground of appeal fails.

(1)(f) The rule in Browne v Dunn

85. This ground of appeal concerns whether it was open to the Magistrate to consider the evidence of the expert witnesses called by the plaintiffs as to the cause of the accident and accept the possibility that the accident occurred not “without intent” when the defendant’s counsel had not put to those witnesses in cross examination the scenario that the Corolla had reversed into the plaintiffs’ Mercedes

86. In relation to this ground, the plaintiffs submitted that the Magistrate erred in finding that the plaintiffs failed to prove on the balance of probabilities that the accident was without intent in circumstances where it was not put to any of the three drivers during cross examination that (i) the evidence they gave as to how the accident occurred was false, that is, that the Hilux collided into the rear of the Mercedes pushing the front of the Mercedes into the rear of the Corolla, (ii) the Corolla reversed into the Mercedes, (iii) at the time of impact, the plaintiff was not driving nor was he inside the Mercedes, (iv) the accident was staged for the purposes of making an insurance fraud; and (v) the three drivers knew each other prior to the collision and had made contact with each other for the purposes of staging the accident. On my reading of the judgment, the Magistrate did not make a finding that the accident was staged for the purposes of making an insurance fraud.

85. Counsel for the plaintiffs submitted that, as a matter of procedural fairness, the defendant or the Magistrate should have put to the three drivers in cross examination, firstly, that they were lying in respect of the evidence they gave as to how the collision occurred; and secondly, that the accident occurred as a result of the Corolla being put into reverse and colliding into the front of the Mercedes. According to the plaintiffs this meant that the Magistrate could not have concluded that the drivers were lying in respect of the evidence they gave as to how the accident occurred: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [67]; see also Bradley per Leeming JA at [13]. His Honour should therefore have accepted the drivers’ evidence and found that the collision occurred in the manner described by Mr Issa, the driver of the Corolla and the driver of the Hilux. If that uncontested evidence had been accepted, the plaintiffs argued, the Magistrate should have found that the plaintiffs had proved on the balance of probabilities that the accident was “without intent”.

86. While there has been some qualifications in recent years as to the application of the rule in Browne v Dunn, notably in the context of criminal trials, it remains a rule of basic procedural fairness that should ordinarily be observed in civil matters. Lord Halsbury, at 76-77, observed:

“To my mind, nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.”

89. In Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773, the full Federal Court considered the issue of whether an adverse finding could be made by a trial judge against a witness in contradiction of their sworn testimony where contradictory matters were not put to the witness in cross examination. The Court stated (at [51]):

“As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to give an explanation. However, there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16; R Cross, Cross on Evidence (4th ed, 1991), par 17445.”

90. Notice may be given where the contradictory matters emerge with sufficient clarity from the pleadings and particulars: Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337, at [55]-[56] and S Odgers, Uniform Evidence Law, EA 46.60 (last review: 4/4/2016).

91. In the Local Court, the defendant in its defence pleaded that the Corolla reversed into the first and second plaintiffs’ Mercedes and that the damage to the vehicles was staged for the purpose of making and pressing a fraudulent insurance claim. (D [6]).

92. The plaintiffs were put on notice of the case that was being alleged against them, that is, that the accident was staged for the purpose of making and pressing a fraudulent insurance claim. In these circumstances, it is my view that the defendant’s counsel and the Court did not offend the rule in Browne v Dunn. As stated previously, the Magistrate accepted that the drivers of the vehicles did not know each other. While the Magistrate exposed the inconsistencies in the drivers’ evidence, he did not make findings that they were lying. Rather he grappled with the inconsistencies in their evidence. This is the task he was required to carry out. The plaintiffs were afforded procedural fairness. This ground of appeal fails.

(1)(g) Failure to consider aspects of Dr White’s evidence

93. This ground of appeal is whether the Magistrate failed to exercise his jurisdiction by reason of his failure to consider and make findings about the following aspects of Dr White’s evidence: (a) that incident 4 (as recorded on the EDR) recorded a quite different scenario than that recorded in incidents 5 and 6 (T80, 9/3/2015); (b) incident 4 could have occurred on a day different to incidents 5 and 6 (T81, 9/3/2015); and (c) only one of the two bulbs actually showed hot shock (T84, 9/3/15).

94. In relation to (a) above, Dr White conceded that it was possible that the incidents occurred in the same way as Mr McDonald opined.

95. For completeness, in their joint report the experts agreed that the retrieval of crash data from the Corolla’s EDR showed impacts that were inconsistent with the claimed collision’s circumstances and location. That is, inconsistent with the Corolla stopping suddenly and being impacted from behind by the Mercedes. The Corolla showed a magnitude of damage consistent with the collisions recorded by the EDR.

96. The EDR showed the three most recently recorded impacts experienced by the Corolla as separate reversing collisions up to a speed of 22 kilometres per hour from stationary starts on each occasion. The three events are separated by at least five seconds each and are therefore distinct separate incidents and not part of an ongoing collision. Three separate collisions from stationary starts appear inconsistent both the reported collision circumstances and expected traffic flows on Woodville Road around 5.00 pm on 27 November 2012. (Ex 27; BB1 Tab 9).

97. At [71] to [73] the Magistrate explained:

“3) The evidence associated with the light filaments

71 Mr McDonald closely examined the filaments on the globes in both the Mercedes and the Corolla. They were for the brake lights and the reverse lights. In relation to the Corolla’s brake lights, he says that they “were not likely illuminated at the time of the impact, nor within a few seconds preceding impact” (report of 26 February 2013 at paragraph 39). In relation to the Corolla reverse lamp filaments, he concluded that “the condition of the filaments indicates the vehicle reverse lights were illuminated at the time of the impact”. That is, the car was reversing. This is also dealt with, very briefly, in the evidence taken before me on 9 March 2015 [see page 83-84].

Conclusions on the Expert Evidence

72 I found, for reasons indicated, that on the balance of probabilities the EDR attached to the Corolla was that which was examined after the alleged accident and it was the EDR that was present in the Corolla at the time of the events on 27 November.

73 This being the case, a number of conclusions can be reached on the expert evidence;-

…

3) The damage to both cars that is the Corolla and the Mercedes, is consistent with what the events that the EDR disclosed and in particular when the events 4, 5, and 6 are combined. If these occurred a short time apart, then those three events are sufficient to explain the damage that was found on the two motor vehicles. These three events if considered separately are not sufficient to explain the damage done to the motor vehicles, given that separately they were not of sufficient force. However, in combination they do disclose sufficient force to explain the damage.

4) The EDR shows that these events all occurred when the Corolla was in reverse.

5) The last conclusion is consistent with the finding associated with the examination of the reverse light filaments in the Corolla, namely, that the Corolla was in reverse when the collision occurred, with the reverse lights illuminated.”

98. Consistent with Mr McDonald’s evidence, Dr White accepted that “only one of the two bulbs actually showed hot shot.” (T84.11, 9/3/2015). Dr White’s evidence on this topic was limited to an observation that, if the reverse globes were illuminated at the time of the collision, he would expect to see hot shock in both bulbs, not just one. While the Magistrate did not engage with Dr White’s evidence, it is apparent that he accepted Mr McDonald’s evidence that the reverse globe would need to have been close to the point of contact in order to experience hot shock and that an absence of hot shock in one light is inconclusive. The existence of hot shock in one reverse light was sufficient to establish that the Corolla’s reverse lights were on, meaning the car was in reverse at the time of the impact. This conclusion was consistent with the Corolla’s EDR evidence of three separate reversing collisions, with which Dr White agreed in the joint report.

99. In these circumstances, it was open to the Magistrate not to accept the evidence of Dr White outlined by the plaintiffs, particularly where it conflicted with the evidence he agreed to in the joint report. This ground of appeal fails.

(2)   Whether leave to appeal should be granted in relation to questions of mixed fact and law

100. The first issue to be determined is whether leave to appeal should be granted. The plaintiffs seek leave to appeal on a question of mixed fact and law pursuant to s 40(1) of the Local Court Act.

101. In the amended summons at [2] the plaintiffs set out 23 grounds of what they assert are questions of mixed fact and law. Some of them have already been addressed as raising questions of law earlier in this judgment and others dispute pure findings of fact. The defendant opposes leave to appeal being granted.

102. In Be Financial Pty Ltd v Das [2012] NSWCA 164, the Court of Appeal set out the principles to be considered in deciding whether leave to appeal should be granted. At [32], [33] and [35] Basten JA (Tobias AJA agreeing) stated:

“[32] The principles governing cases such as these have recently been restated in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. As Campbell JA noted (with the agreement of Young JA) at [22]:

‘It is of some importance to reiterate the principles that were stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69, where Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. Cole JA relied on a principle that where small claims are involved, it is important that there be early finality in determination of litigation, otherwise the costs that will be involved are likely to swamp the money sum involved in the dispute.’

[33] In Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Campbell JA, with the agreement of Young and Meagher JJA, expanded on his summary of Carolan, noting that Kirby P had recognised ‘that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable’: at [46].

…

[35] In Coulter v The Queen [1988] HCA 3; 164 CLR 350, dealing with a challenge to a refusal of the South Australian Full Court to grant leave to appeal in a criminal matter, the majority noted that a leave requirement was a preliminary procedure ‘recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention’: at 356 (Mason CJ, Wilson and Brennan JJ). That statement is clearly applicable to civil, as well as criminal, appellate jurisdiction.”

103. I have already covered the plaintiffs’ main complaints involving questions of law and these appeal points mostly cover the same ground. The amount in dispute is a relatively modest sum. These appeal points raise no issues of public importance nor is there an injustice that is reasonably clear. For these reasons I refuse to grant leave to appeal.

104. The result is leave to appeal is refused. The appeal is dismissed. The decision of Magistrate Curran dated 9 September 2015 is affirmed. The amended summons filed 31 December 2015 is dismissed.

105. Costs are discretionary. Costs usually follow the event. The plaintiffs are to pay the defendant’s costs on an ordinary basis as agreed or assessed.

The Court orders that:

(1)   Leave to appeal is refused.

(2)   The appeal is dismissed.

(3)   The decision of Magistrate Curran dated 9 September 2015 is affirmed.

(4)   The amended summons filed 31 December 2015 is dismissed.

(5)   The plaintiffs are to pay the defendant’s costs on an ordinary basis as agreed or assessed.

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Decision last updated: 20 September 2016