Jamieson v Ahmed
[2015] WADC 100
•27 AUGUST 2015
JAMIESON -v- AHMED [2015] WADC 100
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 100 | |
| Case No: | CIV:2416/2012 | 8 - 10 JUNE 2015 | |
| Coram: | SCHOOMBEE DCJ | 27/08/15 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | STEVEN GEORGE JAMIESON HASSAM GEME AHMED |
Catchwords: | Motor vehicle accident Liability Whether accident occurred at all Whether defendant negligent |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
HASSAM GEME AHMED
Defendant
Catchwords:
Motor vehicle accident - Liability - Whether accident occurred at all - Whether defendant negligent
Legislation:
Nil
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr A A Nolan
Defendant : Mr D Clyne
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Nil
1 SCHOOMBEE DCJ: The plaintiff, Mr Jamieson, was driven to a medical appointment by his partner, Ms Pamela Graham, on 2 September 2011. Ms Graham was driving Mr Jamieson in his car, which was a 1985 model Toyota Corona. It was a cloudy day, but the roads were dry.
2 Ms Graham approached a roundabout in Balga Avenue, Perth, travelling west. She intended to pass through the roundabout and drive straight ahead, down the continuation of Balga Avenue. To her left, Walderton Avenue joined Balga Avenue from the south. Walderton Avenue did not continue past the roundabout.
3 The case for Mr Jamieson was that once Ms Graham had entered the roundabout and had almost passed Walderton Avenue she suddenly saw a gold coloured station wagon, a taxi, entering the roundabout from Walderton Avenue. The taxi collided with the left front of her car at an angle. She steered to the right to avoid further contact and felt the rear of the taxi hitting the rear of her car. As a result of the impact and her veering to the right, Ms Graham crossed over a small island in between the two lanes of Balga Avenue, just to the west of the roundabout, as well as the oncoming lane of Balga Avenue. Having mounted the kerb on the wrong side of the road, she swerved back over the eastward bound lane of Balga Avenue and over the island in the middle. She found herself parallel to the taxi which had only been proceeding at walking pace down the westbound lane of Balga Avenue and indicated to the driver of the taxi to stop. He pulled into a bus stop situated on Balga Avenue a short distance west from the roundabout. Ms Graham brought her car to a standstill in front of the taxi.
4 Mr Jamieson claims that as a result of this collision he suffered soft tissue and ligamentous injuries as well as disc protrusions.
5 The parties have agreed that this court should decide the issue of the defendant's, Mr Ahmed's, liability as a preliminary issue. The question whether Mr Jamieson suffered any injuries or whether they were caused by the impact between the two cars is not to be decided by this court, at least not on this occasion.
6 Mr Jamieson claims that the collision was caused by the negligent driving of Mr Ahmed in that he failed to give way to the Toyota Corona coming from his right, failed to keep a proper lookout, failed to apply the brakes of his vehicle, drove at an excessive speed and failed to stop, steer or swerve his motor vehicle so as to avoid the collision with the Toyota Corona.
7 The case for the defence is that no collision ever occurred between the two vehicles. Mr Ahmed gave evidence that when he turned from Walderton Avenue into Balga Avenue the Toyota Corona was not in the roundabout and not to be seen. He first noticed it when it passed his taxi at speed after he was already well into Balga Avenue to the west of the roundabout. Mr Ahmed's case is that the Toyota Corona swerved in front of his vehicle, forcing him to brake and stop. There was then an altercation between Mr Jamieson and Ms Graham on the one hand, and Mr Ahmed on the other. Mr Ahmed says at no stage did the taxi make any contact with the Toyota Corona.
8 The two versions of events are so different that they are essentially mutually exclusive.
Evidence of Mr Steven Jamieson
9 Mr Jamieson gave evidence that Ms Graham approached the roundabout at what he estimated to be between 15 km and 20 km. He could not recall her stopping at the roundabout. As they were travelling through the roundabout he suddenly saw through his front window a taxi in Walderton Avenue, a short distance from the entry to the roundabout. The taxi did not give way and its right front collided with the Toyota's left front at an angle of 25 or 30 degrees. The taxi had a bull bar at the front and this hit the Toyota's left front indicator light.
10 In reaction to the impact, Ms Graham swerved to the right and the taxi swerved to the left. The rear end of the taxi then hit the rear end of the Toyota, on the rear arch and the back panel. Mr Jamieson said he did not see the impact at the rear of his car, but felt it happen.
11 Mr Jamieson indicated on an aerial photograph of the roundabout that his car mounted a small island between the two lanes in Balga Avenue to the west of the roundabout, then crossed the oncoming lane of Balga Avenue, went up the kerb and some distance over a grassed area, until it came to rest on a bicycle path. He said that the Toyota was stationary for approximately two seconds before Ms Graham again crossed the eastbound lane of Balga Avenue, drove over the median strip and ended up side by side with the taxi which had been driving at slow walking pace down Balga Avenue in a westerly direction. Ms Graham lent over him and pointed her finger at the taxi driver motioning for him to pull over and stop.
12 Mr Jamieson gave evidence that the taxi pulled into a bus stop and Ms Graham brought their car to a stop in front of him. Mr Jamieson said he got out of the car and walked over to the taxi. Mr Ahmed was standing at the front of his taxi. Mr Jamieson swore at him and Mr Ahmed said 'what?' Mr Ahmed then walked to the back of his taxi looking at the rear of his vehicle. Mr Jamieson followed him, but did not see any damage at the back of the taxi. Mr Jamieson stated that he did not specifically look at the right side of the taxi, but acknowledged that he had not seen any damage on the taxi.
13 Mr Jamieson said he again swore at Mr Ahmed and Mr Ahmed asked him whether he wanted a fight. Mr Jamieson acknowledged that Mr Ahmed was a very small person and said the invitation for a fight made him smile. He told Mr Ahmed that he did not want a fight, but wanted his details.
14 Mr Jamieson gave evidence that Ms Graham passed him a piece of paper and a pen and he went to the passenger side of the taxi and wrote down the name of the driver, which was displayed as 'Geme' on the dashboard and his taxi identification number. Ms Graham handed him a mobile phone and he spoke to a police officer who said the police would not attend an accident where no-one had been hurt.
15 Mr Jamieson told the court that he next saw Mr Ahmed back in the driver's seat. Mr Jamieson asked him for his driver's licence and Mr Ahmed produced a paper licence. Mr Jamieson wrote down the driver's licence number, but noted that the name was different. It was something like 'Mohamed' or 'Ahmed'. Mr Jamieson told Mr Ahmed that it did not appear to be his licence. At that stage Ms Graham reached into the open driver's window, took the keys out of the ignition and walked to the front of the taxi. When Mr Ahmed told her that she would be on camera, she threw the keys back at Mr Ahmed.
16 Mr Jamieson acknowledged that Mr Ahmed told him that he was going to drive to the police station and asked him to come with him. Mr Jamieson said he did not want to follow Mr Ahmed to the police station, as he was on his way to a medical appointment. Mr Jamieson stated he saw Mr Ahmed put the car in drive and was worried that he would run over Ms Graham who was still standing at the front of the taxi. He asked Mr Ahmed nicely to take the car out of drive and placed his left hand on the door inside the open driver's window. In response Mr Ahmed wound up the window so that it closed on Mr Jamieson's wrist. Mr Jamieson told Mr Ahmed to wind the window down or he would smash it.
17 Mr Jamieson gave evidence that Mr Ahmed refused to wind down the window. It was only when another taxi pulled up on the opposite side of Balga Avenue and its driver asked Mr Ahmed to lower down the window, that his wrist was released. The second taxi driver spoke to Mr Ahmed. Mr Ahmed then made a U-turn on Balga Road and drove off in an easterly direction.
18 Mr Jamieson gave evidence that as a result of the collision the left front indicator light was smashed and there was a dent on the front fender. He said the impact to the rear had caused damage to the rim on the side panel just above the left rear wheel and also a crease in the rear fender.
19 Mr Jamieson said that his 13-year-old son had taken photographs of the damage on the Toyota on 12 October 2011. He could not explain why the photographs were only taken almost six weeks after the collision. Photograph 1A shows a broken left front indicator light, a horizontal dent on the fender just above the light, a rust mark where the fender meets the bonnet and another horizontal dent to the right of the indicator light. Photographs 2B, 3A and 3B show a dent running more or less vertically from above the rear bumper to the top of the rear fender, some dark markings just above the wheel rim and some markings which could possibly be scrape marks on the rear passenger door.
20 Mr Jamieson gave evidence that he could not afford to have repairs done to the car. He bought a new indicator light and replaced this himself and a friend lay in the boot and pushed out the back panel with his feet. Mr Jamieson also pried the headlight out a few centimetres with a bar. He said Ms Graham continued to drive the car for about a year until the motor stopped. They then gave it to a scrap yard for $50.
Evidence of Ms Pamela Graham
21 Mr Graham gave evidence that she approached the roundabout at about 45 km or 50 km and came to a stop before entering the roundabout, because she was waiting to see whether a car coming from the opposite direction in Balga Avenue would enter the circle. As the car went straight ahead, she proceeded into the roundabout at an estimated speed of 15 km - 20 km per hour.
22 Ms Graham said she looked left, right and left again before she entered the roundabout. When she was approximately three-quarter way through the roundabout and just about to exit it onto the west bound lane in Balga Avenue she suddenly saw the taxi for a split second, before it collided with the front of the Toyota. She had not seen the taxi before.
23 Ms Graham gave evidence that the taxi collided with the front of her car at an angle of approximately 45 degrees. Her instant reaction was to steer away to the right. She then heard the taxi colliding with the rear of her car.
24 As a result of the impact, her car went across a small island in Balga Avenue to the west of the roundabout, crossed the oncoming lane, mounted the kerb and then turned back over the median strip, facing west. Ms Graham said she did not slow down or brake when she swerved over the oncoming lane in Balga Avenue and mounted the kerb on the other side. She said she was still in shock and concerned about cars following her or oncoming traffic. She denied that she had progressed further than the kerb on the other side of Balga Road or had come to a stop on the bicycle path. She said she came straight back across the eastbound lane of Balga Avenue after having mounted the kerb.
25 Ms Graham said when she was back on the median strip facing west, she pointed at Mr Ahmed to pull over. Mr Ahmed pulled into the bus stop and she parked the Toyota in front of his car. She was very upset. She told Mr Ahmed, who was sitting in his car that he had hit her car. Mr Jamieson approached them and she walked to the front of the taxi to get herself together. She saw Mr Ahmed walk to the back of his taxi and Mr Jamieson standing there with him. She rang the police on her mobile phone, but they indicated that they would not attend if an ambulance had not been called. The police advised her to obtain the details of the other driver.
26 Ms Graham stated that she gave paper and a pen to Mr Jamieson, but let him do the talking because she was still upset. She stood at the front of the taxi. She could not hear what Mr Jamieson and Mr Ahmed were talking about. She offered to provide her driver's licence details to Mr Ahmed. However he refused to provide his details to them. She then waved a taxi down coming along Balga Avenue in an eastbound direction. She asked the taxi driver to persuade Mr Ahmed to provide his details.
27 Ms Graham said after the two taxi drivers had spoken, Mr Ahmed still did not want to give his details. She then panicked and took his car keys. She said she reached into the open driver's window and took them out of the ignition. Mr Ahmed told her that she was on camera and that he would ring his head office. She replied 'good' and gave him back his keys. She said she did not take any remote.
28 Ms Graham gave evidence that she next looked at the name of the taxi driver and his identity number on the dashboard and shouted it out to Mr Jamieson who wrote it down on a piece of paper. She said Mr Ahmed then showed them his licence, but because it had a different name to the name she had seen on the dashboard, she thought that Mr Ahmed was refusing to give them his correct details.
29 Ms Graham said she went back to the front of the car because she wanted to stop Mr Ahmed from driving off and saw Mr Jamieson's hand getting caught in the window of the car. She said they were all swearing at each other. She initially denied that Mr Ahmed had told them that they were troublemakers, but subsequently agreed that he said that. She stated she could not remember whether Mr Ahmed had asked them to go with him to the police station.
30 Ms Graham said she did not see any damage on the taxi, but did not look on the side of the taxi because she was more concerned about the damage to her own car.
31 Ms Graham stated that she went to the police after Mr Jamieson's appointment and asked to complete an accident report. She was given a form, but told to come back on Monday as nobody could attend to her. She then completed an accident report, dated 5 September 2011.
32 Ms Graham gave evidence that approximately two days after the incident she went to a nearby shopping centre where taxis usually gathered and located Mr Ahmed's taxi with the number 440 on the registration plate. She took two photographs of the front of the taxi, one showing the bull bar at the front and a close up of the right headlight which she said contained a small crack.
33 Ms Graham acknowledged that she could not see any damage or scratches on the bull bar of the taxi nor on the driver's side of the car. She said she only looked at the front of the taxi and not at the back, because she was on her way to the shops.
Evidence of Hassan Ahmed
34 Mr Ahmed strenuously denied that there was ever any collision. He said he was on his way home and on approaching the roundabout at the end of Walderton Avenue saw no car coming from the right down Balga Avenue. He explained that one could not see the whole of Balga Avenue to the east of the roundabout, only a couple of metres, but enough to see whether any cars were approaching.
35 Mr Ahmed said he did not stop at the entry to the roundabout as no cars were coming from the right, but slowed down. He took the left-hand turn into Balga Avenue at about 15 km – 20 km per hour. He was approximately 100 m into the western section of Balga Road when he heard a beep and saw the Toyota briefly in his rear window before it sped past him and pulled up in front of him. He stopped approximately 1 m behind the Toyota. A man got out of the passenger side of the car and accused him of having hit his car. Mr Ahmed said he got out of his car and noticed that there was a good gap between his car and the Toyota and told the man this. The man then alleged that Mr Ahmed had hit their car in the roundabout. Mr Ahmed told the man that he had not hit anything and asked him to point out the damage on his car. The man refused to allow him to see the damage.
36 Mr Ahmed told the court that a lady then also exited the car with a piece of paper and a pen in her hand. Mr Ahmed was talking to the man at the front of his car asking to see the damage on their car. He said the man was very aggressive and he asked him to cool down. Mr Ahmed then returned to his car and noticed the lady sitting in his passenger seat. He asked her what she was doing and she said she was taking down his details. Mr Ahmed told her that he would be happy to give them to her if she asked. Mr Ahmed gave evidence that the lady then took his keys out of the ignition and removed the remote which was clipped to the dashboard to the right of the steering wheel. She left the car and started to run. He told her that her photograph would be on camera. She then came around to the driver's seat where Mr Ahmed was seated again and threw the keys at him. She left the remote on the bonnet between the windscreen wipers.
37 Mr Ahmed gave evidence that the man demanded to see his licence. Mr Ahmed told him that he would show them his licence, but he also wanted to see their licences. He said the man refused to provide any details to him. Mr Ahmed showed the man his paper licence. The man said that it was not the right licence, but Mr Ahmed insisted that it was. The man took down some details from the licence.
38 Mr Ahmed gave evidence that he told the other two people they were troublemakers, that he intended to drive to police station and they should follow him. He started the car. Mr Ahmed said the man then reached into the open window, tried to take the car keys and attempted to punch him. Mr Ahmed moved his head away and pressed the button to raise the window. The man's arm became stuck between the window and the doorframe. Mr Ahmed released the window slightly, but the man pushed his arm back into the car. Mr Ahmed again lifted the window up and caught the man's arm. He told the man he would release him if he took his hand out. He opened the window a bit, but the man again pushed his hand in, this time up to his elbow. Mr Ahmed again raised the window so that the male's arm became stuck.
39 Mr Ahmed said at that stage another taxi driver approached their vehicle and spoke to them. Mr Ahmed agreed to release the arm of the male person. He then drove off but stopped after about 100 m to retrieve the remote control from the bonnet. He kept driving in a westerly direction on Balga Avenue to return the taxi to Mr Hussein Idris with whom he was sharing a taxi.
40 Mr Ahmed gave evidence that he left the taxi at Mr Idris's house, after having inspected it. He looked at the front, back, right and left side. The taxi had no damage.
41 Mr Ahmed stated he received a letter from Ms Pamela Graham, dated 18 October 2011, in which she gave him 14 days to pay $2,000 and threatened to take him to court. The letter stated that the damage bill exceeded the value of the car which was $2,000.
42 Mr Ahmed said he received a further letter from the Aboriginal Legal Service, dated 14 November 2011. This letter was written on behalf of Ms Pamela Graham and alleged that he had been negligent in that he had failed to give way to her vehicle. The letter stated that the vehicle was valued at $2,000 and was beyond repair. A claim for $2,000 plus interest was made.
43 Mr Ahmed told the court that he received a third letter from Northern Suburbs Community Legal Centre Inc, dated 20 January 2012. This was written on behalf of Mr Steven Jamieson and again stated that he had caused damage to his vehicle and was responsible because he had failed to give way. The damages claimed were $1,200 on the basis that the vehicle was not worth repairing.
Evidence of witnesses regarding damage to the taxi
44 Mr Hussein Idris gave evidence that he shared taxi number 440 with Mr Ahmed in 2011. Mr Ahmed drove the taxi in the daytime and he drove it in the evenings, from 4.00 pm to 4.00 am. Mr Idris said that he had also shared taxis with other drivers over the years.
45 Mr Idris gave evidence that at the start of each of his shifts he would inspect the taxi that he shared with another driver, from the outside and the inside. He had never observed any damage to the taxi that he had shared with Mr Ahmed in 2011.
46 Mr Idris said it was his habit to go to the mosque at lunchtime on a Friday and then return home before 4.00 pm to have lunch with his family before starting his nightshift. When he returned from nightshift he would go straight to bed. He explained that the person who shared a taxi with him retained a spare key and he might not necessarily see the person when the taxi was returned.
47 Mr Idris explained that a taxi driver was not allowed to drive with any damage to his taxi. If his car sustained small damage, he might take it to a panel-beater and have it fixed at his own cost. If the damage was more serious, he would report it to the owner and pay the excess for an insurance claim. However he never made any claim or had any damage fixed with regard to the taxi he had shared with Mr Ahmed.
48 When Mr Idris was shown photograph 4B he agreed that there was some damage on the headlight depicted on that photograph, but said he had never seen such damage on taxi 440. He agreed that if this was the headlight of taxi 440 it was possible that the other driver had fixed the damage without him knowing about it. However, he said that such damage would have had to be fixed in the morning, because if it had occurred in the afternoon, the driver would not have had time to do so before handing the taxi over to him.
49 Mr Kim Johnson, a director of Embleton Motor Co Pty Ltd, gave evidence that his company was the owner of taxi number 440. He could not confirm that his company had leased this taxi to Mr Idris, because his company managed between 70 and 80 taxis. However, he said that to his knowledge no damage to taxi number 440 was ever reported to him. He explained that according to the agreement between his company and a lessee of a car any damage, however small, had to be reported. It was then open to a lessee of a taxi to fix small damage at their own cost or to make a claim through the company's insurance.
50 Counsel for Mr Ahmed also tendered a letter from the Insurance Commission of Western Australia to Embleton Motor Co Pty Ltd, dated 17 October 2011. The letter reported that the Insurance Commission had received a claim for personal injury from a passenger in a vehicle who alleged that taxi 440 had run into the rear of his vehicle. The Insurance Commission requested information as to whether taxi 440 was damaged at the front in any way on 2 September 2011.
51 It was accepted between the parties that the Insurance Commission received back this letter with a handwritten note stating that there was no damage on taxi 440, no claim had been lodged by the driver and no repair had been done by the owner. The note asked the Insurance Commission to refer to the driver for further information.
52 There was no indication as to who wrote the note on the letter that was returned to the Insurance Commission. However, I accept that on the face of the document this is a business record of the Insurance Commission, because it records a matter relating to its business. On the face of the letter it appears that someone from Embleton Motor Co Pty Ltd, rather than writing a letter in reply, returned the letter with the note written on it.
53 Pursuant to s 79C and s 79D of the Evidence Act 1906 the information contained in a business record is admissible as evidence of the facts stated in the business record, but the court retains a discretion with regard to the weight to be given to any such statement. In assessing the weight to be given to a particular statement, the court needs to take into account the reliability of the source from which the statement is produced, whether the person who made the statement had any incentive to conceal or misrepresent the facts and whether the information in the statement was of a kind which was collected systematically.
54 It was not put to Mr Johnson that Embleton Motor Co Pty Ltd might have had an incentive to conceal the fact that there was damage to taxi 440. I am therefore prepared to accept the facts set out in the note, namely that no claim had been lodged with Embleton Motor Co Pty Ltd and no repair had been done by the owner. With regard to the statement that there was no damage on taxi 440, I am a bit more reluctant to accept this statement at face value, because there is no evidence as to who had inspected the taxi and on what date.
55 Mr Ettridge, a panel beater and proprietor of Wanneroo Smash Repairs, gave evidence that he inspected the Toyota Corona in October 2011. He came to the conclusion that the costs of the repairs would be greater than the market value of the vehicle. He explained that the black line just above the wheel arch on the rear fender was likely to be glue from the mould around the wheel arch and not a scrape.
Expert evidence
56 Mr Robert Davey gave evidence on behalf of Mr Jamieson. Mr Davey is a forensic consultant in relation to motor vehicle crashes. He has a Bachelor of Science degree in computer science as well as a qualification from the City and Guilds of London Institute in motor vehicle accident reconstruction. He has been employed by the WA Police and by the British Traffic Police for many years and has acted as a consultant since 1993. His qualifications and experience were not challenged in cross-examination apart from the fact that it was put to him that he did not have a Bachelor of Science degree in mechanical engineering.
57 The only information provided to Mr Davey was the photographs of the damage on the left front and rear of the Toyota, as well as the photograph of the front bull bar of taxi 440 and what was said to be a photograph of the right headlight. Mr Davey did not have the opportunity to inspect either vehicle.
58 Mr Davey was of the view that the damage to the left front of the Toyota was entirely consistent with the bull bar of the taxi having hit the front fender. He explained that the broken indicator light, the horizontal dent just above the light and the buckling to the right of the light were all consistent with the bull bar having made contact with that area. He was of the view that the fact that the bumper underneath that damage appeared unaffected did not necessarily indicate that the front of the Toyota was not hit by the bull bar. He said the bumper was made of a strong metal and may have been pushed inwards. If this was the case, it would not necessarily be visible on a photograph.
59 Mr Davey expressed the opinion that the damage to the rear of the Toyota was not easily explained, particularly if it was accepted that the taxi was undamaged. He stated that it could not be excluded as having been caused by the rear of the taxi coming into contact with the rear of the Toyota, but said that he was not entirely convinced about this explanation. Mr Davey accepted that if the Toyota had been turning right at impact and the taxi left that would have reduced the severity of the impact at the front and would have brought the vehicles to a parallel position. He said it was possible that the rear of each vehicle could then have collided, but was of the view that such a conclusion was problematic.
60 Mr Davey said he could not be more precise regarding how the damage to the rear of the Toyota might have been caused, without having examined both vehicles. He was of the view that a collision between the two vehicles at the rear was difficult to accept, particularly if the taxi was undamaged. However, it was not impossible for one vehicle to receive damage during a collision and the other one not. It depended on the actions of each driver, the speed and the pivot points of the vehicle.
61 Mr Davey said it was highly likely that the Toyota would have crossed the median island after the collision. Whether it was likely to have crossed the east-bound lane of Balga Avenue was dependent on the speed and reaction of the driver. If the speed had been slower, the car could have been brought back onto the west-bound lane within a smaller radius than if the car had been driving faster.
62 Mr Davey also commented in his report upon an expert report provided by Mr Martin Simms on behalf of Mr Ahmed. Mr Davey focussed in his report on showing that Mr Simms' assumption that the two vehicles collided at a 90 degree angle was likely to be wrong because of the layout of the intersection between Walderton Avenue and Balga Avenue. He also focussed on a statement made in Mr Simms' report that the damage sustained to the front of the Toyota was inconsistent with an impact severe enough to have pushed the Toyota sideways and rotate the taxi. Mr Davey pointed out that the Toyota might have moved over the island in the middle of Balga Avenue, because Ms Graham had been steering to the right and there was no evidence that the taxi had actually rotated. Mr Davey was of the view that if Ms Graham had steered to the right and the taxi had turned to the left at impact, this would have reduced the severity of the impact and would naturally have brought the rear of the vehicles closer together while the vehicles were travelling side by side. However, Mr Davey agreed with Mr Simms that the damage to the rear of the Toyota was not easily explained, particularly if the taxi was undamaged.
63 Mr Davey also disagreed with a conclusion by Mr Simms that the impact to the front of the Toyota was not such as to have caused the Toyota to slow down and because the taxi was longer than the Toyota, this meant that its rear corner could not have struck the back of the Toyota. Mr Davey was of the view that this conclusion could only be reached if a significant rotation by the taxi and a time gap between the two impacts at the front and the rear was inferred. He expressed the view that if the vehicles collided at a much shallower angle and were travelling at similar speeds, the rear of the taxi could still have hit the rear of the Toyota.
64 Mr Martin Simms provided two reports on behalf of Mr Ahmed. The second one was in reply to the report by Mr Davey. Mr Martin Simms has a Bachelor of Applied Science in mechanical engineering, a Diploma in Computer Studies and various certificates in drafting and mechanical fitting. He has over 25 years' experience as an independent consultant engineer. His qualifications and experience were not challenged.
65 Mr Simms also based his reports on the photographs of the two cars. He did not have the opportunity to inspect them.
66 In his first report Mr Simms proceeded on the understanding that the taxi hit the Toyota at 90 degrees. This was based on a sketch drawn by Ms Graham on the accident report that she had provided to the police. However, it was explained to Mr Simms that the evidence of Mr Jamieson had been that the taxi had struck their car at an angle of approximately 20 – 30 degrees and Ms Graham had said that the angle was approximately 45 degrees. Mr Simms explained in evidence that the exact angle did not make any difference to the opinions expressed in his report.
67 Mr Simms firstly questioned whether the two indentations on the front fender of the Toyota could have been caused by the bull bar of the taxi as there was no visible damage to the bumper immediately below the damage on the fender. It was put to Mr Simms that Mr Davey was of the view that the bumper could have been pushed into the fender and that one would not necessarily see this on a photograph. Mr Simms stated that the bumper was more likely to have been plastic and not metal and that at least the metal strip on the bumper was likely to have shown some damage if the bull bar had hit the front of the Toyota and caused the indentations. Nevertheless, Mr Simms said it was possible that the bull bar had been high enough to miss the bumper, but it was unlikely. He also explained that the relatively long horizontal indentation next to the indicator light was not something one would expect to see from an impact with the type of bull bar commonly fitted to taxis.
68 The second matter which Mr Simms raised was that in his opinion the damage to the rear of the Toyota could not have been caused during the collision as described by Mr Jamieson and Ms Graham. He explained that he and Mr Davey were in agreement that the damage to the front of the Toyota was minor and Mr Simms was of the view that this was inconsistent with an impact of the necessary force to cause one or both vehicles to rotate in a manner which would bring the rear of the two cars together. He stated that even if the rear of the two cars had been brought together, because Ms Graham had steered to the right, the flat side of the taxi could not have caused the horizontal indentation seen on the back fender of the Toyota.
69 Mr Simms was of the opinion that this indentation could also not have been caused by the rear corner of the taxi, as the rear end of the taxi would have been behind the rear fender of the Toyota at the time of impact. Mr Simms relied on the published dimensions applicable to each vehicle, as set out in Mr Davey's report, and calculated that the distance between the front damage and the rear damage on the Toyota was around 3,700 mm, whereas the distance between the bull bar and the rear of the taxi was at least 4,600 mm. The rear end of the taxi would therefore have been 900 mm (almost a metre) behind the rear end of the Toyota.
70 Mr Simms said his conclusion was reinforced by Ms Graham's evidence that she did not brake immediately after the collision. Mr Simms explained that if the Toyota had continued to move at a speed of 15 –20 km per hour, it would have moved forward very quickly and this would have made it even less probable that the rear end of the taxi could have struck the rear fender of the Toyota. Mr Simms stated in his report that the only way in which the rear of the taxi could have collided with the rear fender of the Toyota would have been if the impact to the front was sufficient to spin the taxi about its perpendicular axis, but the limited damage to the front of the Toyota was clearly insufficient for this to have occurred.
71 Mr Davey did not specifically deal with Mr Simms' reasoning as to why the vertical indentation on the rear fender of the Toyota could not have been caused by the rear of the taxi. He simply said in his report that Mr Simms' conclusion 'appears to infer a significant rotation and time gap between the two impacts (front and rear). If the vehicles had collided at a much shallower angle and were travelling at similar speeds this would not be the case'. In his evidence in court Mr Davey conceded that the conclusion that the dent on the rear fender was caused by the rear of the taxi was problematic.
72 The third reason advanced by Mr Simms as to why the damage to the Toyota could not have been caused in the collision as described by Mr Jamieson and Ms Graham was that if the damage to the rear fender had been caused by the taxi, it would have shown clear signs of contact and damage. Mr Simms explained that the flat side of the taxi could not have made the dent on the rear fender. The dent would also not have occurred by way of some deferred force. This would have required an impact of considerable magnitude, which would have been visible on both vehicles.
73 Mr Simms said the vertical indentation on the rear fender of the Toyota could only have been caused by something vertical, such as the rear end of the taxi, but in such a case one would definitely have expected some damage to be visible on the taxi. It was put to Mr Simms that in Mr Davey's opinion it was not necessarily the case that if two vehicles collided, each would incur damage. Mr Simms expressed the view that all cars were made of the same sheet material with similar strengths and the force required to make an indentation in one car would leave some damage on the car that made the indentation. Mr Simms stated that it did not fall within Mr Davey's expertise to give an opinion about the force required to cause damage, as he was not qualified as a mechanical engineer.
Findings of fact
74 It is difficult to make any credibility findings against any of the parties in this case. Both versions of events could possibly be true and there are no major inconsistencies or clearly implausible statements in any of the principal witnesses' evidence on the basis of which the court could say that the evidence of one party should clearly be rejected. I would not attempt to make a credibility finding on the basis of demeanour alone, and there was no aspect of the demeanour of any of the principal witnesses which stood out.
75 However, there were some matters which were of concern, particularly in the evidence of Ms Graham. She said she had looked left, right and left again before entering the roundabout, but did not see the taxi until a split second before it collided with the front of her car. This seems implausible, although drivers may be inattentive at times or simply overlook an approaching car.
76 Ms Graham also denied ever having sat in the passenger's seat of the taxi, but agreed that Mr Ahmed said to her that she was on camera. It is unlikely that Mr Ahmed would have made that observation if she had only stuck her arm into the open window on the driver's side in order to take the key out of the ignition which is usually close to the window. She also gave a version of events in which she said she first hailed the driver of the other taxi and then took the keys out of the ignition. Both Mr Jamieson and Mr Ahmed said that the other taxi driver only approached the car when Mr Jamieson's arm was stuck in the window.
77 There were also differences between what Mr Jamieson stated happened just prior and after the collision and what Ms Graham said in that regard. Mr Jamieson said Ms Graham did not stop before entering the roundabout, while she gave evidence that she stopped for about 10 seconds to see whether a car coming from the opposite direction would enter the roundabout or not. Mr Jamieson said that Ms Graham went all the way up the kerb and the grassed area on the other side of Balga Avenue and stopped for a second or two on the bicycle path, while Ms Graham denied that she went as far as the bicycle path or stopped there.
78 One obviously has to accept that there will be some differences in how witnesses observe a stressful incident and in what they remember. I would not have rejected the evidence of Mr Jamieson and Ms Graham on the basis of these matters alone. However, the fact that Mr Simms explained that the damage to the Toyota could not have happened during the collision as described by Mr Jamieson and Ms Graham adds considerable weight to my concern about accepting the evidence of Mr Jamieson and Ms Graham.
79 Before I deal with the expert evidence, I should say that there is no particular reason to reject the evidence of Mr Ahmed. In fact, his evidence has the ring of truth about it. It is very unlikely that a person who has just been accused of causing damage to another car in a collision, and who has done so or may be concerned that he may have done so, would go to the police, make an incident report and provide a version of events in which no collision occurred and the two vehicles were not even near each other. It is much more likely that if such a person went to the police of his own accord, he would have offered an explanation of how the damage might have occurred without his negligence.
80 Although the incident report taken by Constable Lendich, who also gave evidence, is copied in a manner which only shows the year 2011 and not the full date, it does state that the complainant was at the corner of Balga Avenue and Walderton Avenue at 1:15 pm. It does not say that this was the day before or on another date. It may therefore be inferred that the report from Mr Ahmed was taken on the day that the incident occurred.
81 It also seems unlikely that Mr Ahmed would not have seen the Toyota coming from the right if it was so close to him that he hit it immediately upon turning left. However, I accept that drivers sometimes do not see a car even if it is in their clear vision.
82 Counsel for Mr Jamieson submitted that a credibility finding should be made against Mr Ahmed because the incident report taken by Constable Lendich did not contain all the detail of the altercation after the alleged collision that Mr Ahmed gave evidence about in court. The report says nothing about Mr Jamieson's arm being caught in the window and him trying to punch Mr Ahmed. It also does not specify that Mr Ahmed repeatedly tried to open the window and each time Mr Jamieson stuck his arm back in.
83 Counsel for Mr Jamieson submitted that if these things had indeed happened, Mr Ahmed would have told the police about this threatened assault. Constable Lendich gave evidence that he could not remember the day when he took the report, but would have taken down everything that Mr Ahmed told him. However, both Mr Jamieson and Ms Graham stated that Mr Ahmed trapped Mr Jamieson's wrist in the window and would not release it until the other taxi driver had arrived. It can therefore not be submitted that Mr Ahmed made up this part of the incident in court. At best, it could be submitted that he embellished it in court to show how aggressive and persistent Mr Jamieson was.
84 Mr Ahmed gave evidence in other respects about how aggressive and angry Mr Jamieson was. It did not seem to me that he was embellishing his story to cast a bad light on Mr Jamieson.
85 Counsel for Mr Jamieson also submitted that it was highly unlikely that Ms Graham would have been able to reach the key in the ignition while sitting in the passenger seat and that this would have required some gymnastic feat on her part. I do not agree with that submission. In most vehicles it would be relatively easy to take out the key from the ignition while sitting in the passenger seat.
86 I accept that there was no damage on taxi number 440. Mr Ahmed said there was no damage when he checked the taxi after the incident and Mr Idris gave evidence that he had never seen any damage on taxi number 440. I have also accepted that the note written on the letter from the Insurance Commission indicates that no claim had been lodged by the driver of the taxi in respect of damage to the vehicle and no repair had been done by Embleton Motor Co Pty Ltd.
87 Most importantly, Ms Graham said she saw taxi 440 at the shopping centre two days after the incident. It was on that occasion that she took a photograph of what she said was a crack to its right head light. Surely, if she knew at that stage that the Toyota Corona had been damaged at the rear, she would have inspected the whole taxi at the same time to see whether there was damage on the rear of the taxi as well. Her explanation that she did not do so, because she was on the way to the shops, does not make any sense. She acknowledged that she did not see any scratches on the side of the taxi.
88 Mr Jamieson also gave evidence that he did not see any damage on the rear of the taxi at the scene of the incident.
89 The lack of any damage at the rear of the taxi is the biggest hurdle to Mr Jamieson's claim. I accept Mr Simms' evidence that if the rear of the taxi hit the Toyota to the extent that it caused a reasonably significant vertical dent, as can be seen on the photographs, there would have been some damage to the taxi as well, seeing that it did not have a bull bar at the back.
90 Mr Davey only said in very general terms that sometimes one car may be damaged in a collision, but the other car not. He did not provide any plausible explanation as to how the vehicle indentation could have been caused to the Toyota without the taxi incurring any damage at the rear.
91 I also accept Mr Simms' evidence that the damage to the rear of the Toyota could not have been caused by the collision as described by Mr Jamieson and Ms Graham, because the taxi was longer than the Toyota. Mr Simms explained that the impact at the front could not have been very forceful, because of the minor damage. Further, even if Ms Graham was in the process of turning her steering wheel right or did so in reaction to the impact, so that the rear area of the two vehicles came into contact, the rear end of the taxi could not have inflicted the damage to the Toyota's rear fender because both cars were moving at that time and the taxi was substantially longer. Ms Graham stated she did not brake immediately after the collision.
92 Mr Davey could not offer any explanation as to how the damage to the rear fender could have been caused. All he said was that he could not rule it out, but he was not convinced that it could have occurred as described by Mr Jamieson and Ms Graham.
93 There is also the issue whether the front bull bar of the taxi could have caused the indentations to the front fender of the Toyota without doing any obvious damage to the bumper. However, I accept that neither expert witness had the opportunity to inspect the Toyota or the taxi, and it would have been much easier to give a definitive answer to this question if the height and angle of the bull bar on the taxi could have been compared to the location of the damage on the Toyota. I will therefore not rely on this aspect of Mr Simms' report.
Conclusion
94 Mr Jamieson carries the burden of proof of showing that Mr Ahmed was negligent. I therefore need to be persuaded on a balance of probabilities that his version of how the collision occurred is correct, at least in all material respects, or provides some explanation of how the damage to his car occurred by reason of Mr Ahmed's negligence. The issue of how the damage to the rear of the Toyota was caused is crucial to his case.
95 Taking into account all the evidence before me, including the expert evidence, I am not persuaded on a balance of probabilities that Mr Ahmed failed to give way to the Toyota and caused a collision as described by Mr Jamieson and Ms Graham or caused the damage to the Toyota Corona relied upon by Mr Jamieson.
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