Kalis v New
[2017] ACTSC 334
•10 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kalis v New |
Citation: | [2017] ACTSC 334 |
Hearing Dates: | 4 and 6 August 2015 |
DecisionDate: | 10 November 2017 |
Before: | Refshauge J |
Decision: | 1. The appeal be upheld. 2. The order of the Magistrates Court on 9 September 2014 that the claim of Robert Kalis against Emma New be dismissed, be set aside. 3. In lieu, there be judgment for Robert Kalis against Emma New for damages to be assessed. 4. The parties be heard as to any further or consequential orders including as to costs. |
Catchwords: | CIVIL LAW – APPEAL – Re-hearing – motor vehicle accident – whether accident caused by negligent driving – civil standard of proof – balance of probabilities – learned Magistrate erred in identifying a significant number of facts – case turns on its facts – appeal allowed – consideration between parties as to resolution of damages TORTS – NEGLIGENCE – Duty of care – whether defendant breached her duty of care – failure to exercise reasonable care and skill – breach of duty was a cause of the collision – contributory negligence not pleaded by defendant |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 21, 42, 45, 47, 100, Ch 4 Evidence Act 2011 (ACT), ss 60, 80, 102, 136, 167 Australian Road Rules, r 62, Dictionary |
Cases Cited: | Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Beer v Australand Corporation (Qld) Pty Ltd [2010] QSC 369 |
Texts Cited: | Justice Athol Moffitt, “Procedures at a Common Law Trial regarding Subpoenae Duces Tecum, Notices to Produce and Documents of Parties and Strangers” in Harold H Glass QC, Seminars on Evidence (Law Book Co, 1970) Sir Richard Eggleston, Evidence, Proof and Probability (Wiedenfeld and Nicolson, 2nd ed, 1983) |
Parties: | Robert Kalis (Appellant) Emma New (Respondent) |
Representation: | Counsel Mr S Hausfeld (Appellant) Mr W Fitzsimmons and Ms C Allan (Respondent) |
| Solicitors Snedden Hall & Gallop (Appellant) Sparke Helmore (Respondent) | |
File Number: | SCA 84 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 9 September 2014 Case Title: Kalis v Waltham and New Court File Number: CS 71875 of 2007 |
REFSHAUGE J:
On 8 January 2008, two motor vehicles collided at the intersection of Mort Street and Cooyong Street, Canberra City. One of the vehicles was being driven by the appellant, Robert Kalis; he was driving in Mort Street from the south of the intersection heading north. The other motor vehicle was being driven by Emma New, the respondent; she was driving south in Mort Street up to the intersection but then turned right through the intersection to travel west along Cooyong Street towards Northbourne Avenue, where the collision occurred.
As a result of the collision, Mr Kalis commenced proceedings in the ACT Magistrates Court against Ms New as the second defendant in those proceedings, claiming damages for the personal injuries he said that he had suffered in the collision. As well as general damages, Mr Kalis particularised over $5000 in special damages.
The proceedings were heard 24-26 February and 5-6 March 2014. On 9 September 2014, the Magistrates Court dismissed Mr Kalis’s claim.
Mr Kalis has now appealed against that finding.
Jurisdiction
This Court is granted jurisdiction under Pt 4.5 of the Magistrates Court Act 1930 (ACT) to hear and decide appeals from decisions of the Magistrates Court in the case of personal actions at law. A claim for damages for personal injury caused by the negligence of a person is such an action: Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 at 707.
Under s 274 of the Magistrates Court Act, such an appeal is brought as of right where the amount claimed exceeds $2000 as in this case.
As I explained in Malik v Remondis Australia Pty Ltd [2015] ACTSC 135 at [10]-[14], such an appeal is a re-hearing. In summary, that requires this Court to determine whether the decision of the Court below is wrong by falling into error of law, making a clearly wrong finding of fact or exercising a discretion on a wrong principle, and only on such a finding is this Court justified in interfering with the decision of the Court below.
As the appeal court, this Court must conduct a real review of the trial and of the reasons of the judicial officer from whose decision the appeal is taken. That review, however, must pay due regard to the advantage of the learned Magistrate who has seen and heard the witnesses. The appeal court, however, may draw its own inferences from the primary facts found by the learned Magistrate.
See also Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at 29; [21]-[24]; Ning v McGrath [2015] ACTSC 163; 71 MVR 376 at 380; [11].
The appeal court may, under s 276 of the Magistrates Court Act, receive further evidence in its discretion. In this case neither party sought to have any further evidence received.
The Notice of Appeal
Mr Kalis lodged his Notice of Appeal on 7 October 2014. The grounds of appeal set out in that Notice of Appeal were as follows:
(a) The learned Magistrate at first instance (‘His Honour’) erred in finding that the Second Defendant had not breached her duty of care to the Plaintiff, a finding not properly based on the evidence.
(b) His Honour erred in failing to take account of that part of Mr Keramidas’s evidence concerning the time taken by the vehicles to traverse the intersection and submissions based on that evidence.
(c) His Honour erred in failing to take account of that part of Mr Keramidas’s evidence concerning how long it would take a driver to stop and the Plaintiff’s evidence that the Second Defendant turned in front of his car at about 3m-5m in front of his car. His Honour appears to assume that stopping could be almost instantaneous.
(d) His Honour erred in taking irrelevant considerations into account, including the Plaintiff’s prior motor vehicle accidents and injuries, such factors not being relevant to liability.
(e) His Honour erred in mis-recording the Plaintiff’s estimate of the Second Defendant’s speed and in the weight given to this.
(f) On several occasions, His Honour erred in mis-recording the evidence given, provided inaccurate elisions of the evidence and misstated what was put to the plaintiff or led from the plaintiff.
(g) His Honour erred in failing to consider the taxi company records showing the position of Mr Bajwa’s taxi. These records would have allowed His Honour to give some weight to Mr Bajwa’s evidence.
(h) His Honour erred in failing to provide adequate reasons for his findings.
(i) His Honour erred in applying the wrong standard of proof to his consideration of the matter.
(j) His Honour erred in his finding that the Plaintiff was not a credible witness, a finding not consistent with the evidence.
(k) In assessing the credit of other witnesses, including Second Defendant and her passenger, Ms Gurney, His Honour failed to address admitted memory lapses and inconsistencies.
(l) His Honour erred in confusing issues of primary liability of the Second defendant with issues of possible contributory negligence of the Plaintiff.
Background
In the proceedings before the learned Magistrate, Mr Kalis claimed damages for injuries said to have been sustained in two alleged motor vehicle collisions, one in Yarralumla on 25 March 2007, as well as the one the subject of the present appeal.
The learned Magistrate found that the car then being driven in Yarralumla by Mr Kalis on 25 March 2007 did not collide with the car driven by the first defendant in the Magistrates Court proceedings and also dismissed that claim. That decision is not the subject of the appeal.
His Honour also noted in some detail that, prior to the alleged collision in 2007, Mr Kalis had been involved in six other motor vehicle collisions since 1993 and that he had sustained injuries in each of them for which he received what his Honour described as “financial settlements from his insurer”. It is not clear what his Honour meant by “his insurer” for the settlements appeared to relate to personal injuries suffered by Mr Kalis in the collisions.
Whether the insurance was accident insurance purchased by Mr Kalis or whether his Honour was careless in the use of pronouns, referring, in fact, to the compulsory third party insurer of the other motor vehicle involved in the collisions, is not clear. It may not matter.
The only relevance of these earlier collisions is that Mr Kalis claimed that the later collisions had caused some aggravation to the injuries he had suffered in the earlier collisions to his neck, shoulder and back.
In dismissing the claim Mr Kalis had made arising out of the alleged 2007 collision, the learned Magistrate made unfavourable findings about the reliability of Mr Kalis as a witness. This will be further addressed below.
The learned Magistrate made no specific findings about damages, though expressing some scepticism about the level of injury or disability which Mr Kalis said that he had suffered.
Pleadings
In respect of the claim the subject of this appeal, Mr Kalis pleaded that the collision occurred at about 10:25pm on 8 January 2008 at the intersection of Mort Street and Cooyong Street, Canberra City. The motor vehicles involved were identified by their respective registration numbers, as those driven respectively by Mr Kalis and Ms New.
The circumstances were set out in the Amended Originating Claim as follows:
the plaintiff was heading in a general northerly direction on Mort Street. The plaintiff had stopped his vehicle at traffic lights at the intersection of Mort and Cooyong Streets.
The defendant was travelling south on Mort Street intending to make a right-hand turn into Cooyong Street.
The plaintiff proceeded through the intersection upon receiving a green traffic light signal. At the same time, the defendant made a right-hand turn across the path of the plaintiff causing a collision with the plaintiff’s vehicle.
The particulars of negligence pleaded were as follows:
2B.1 failure to give way to oncoming traffic;
2B.2making a right-hand turn across the path of the plaintiff’s vehicle when it was unsafe to do so;
2B.3proceeding into the intersection of Cooyong and Mort Streets when it was unsafe to do so;
2B.4failure to keep any or any proper lookout;
2B.5failure to allow the plaintiff’s vehicle to pass through the intersection of Mort and Cooyong Streets before attempting to make a right-hand turn;
2B.6driving at a speed that was excessive in all the circumstances; and
2B.7failure to brake or brake sufficiently so as to avoid a collision with the plaintiff’s vehicle.
For the reasons set out above (at [18]), there is no need to set out the particulars of injuries, details of health professionals who have treated Mr Kalis or his employer’s details, though these are required by Form 2.3 (AF2014-160) to be pleaded and prescribed by r 52 of the Court Procedures Rules 2006 (ACT).
In her defence, Ms New, the respondent to the appeal, admitted the fact that Mr Kalis was the driver of the red Honda Civic sedan as pleaded, and that she was the driver of a white Holden Barina sedan, also with the pleaded registration number.
She admitted that Mr Kalis had stopped his vehicle at the traffic lights at the pleaded intersection, heading in a generally northerly direction, and that she was travelling south on Mort Street, intending to turn right into Cooyong Street.
She denied, however, that Mr Kalis proceeded through the intersection when the traffic signal facing him changed to green, that her motor vehicle made a right hand turn across the path of his vehicle or that the two vehicles entered the intersection at the same time. She denied that any collision between the two vehicles was caused by her.
She also denied that Mr Kalis suffered any injury, loss or damage as alleged or at all. Significantly, the defence did not plead that Mr Kalis was guilty of contributory negligence.
Hence, the issues in the proceedings were:
(a) was there a collision between the identified motor vehicles admitted to be at the intersection of Mort Street and Cooyong Street, Canberra City on or at approximately 10:25pm on 8 January 2008 and driven by Mr Kalis and Ms New respectively;
(b) if so, did the two motor vehicles leave the intersection at the same time when the lights regulating their direction of traffic turn green;
(c) was the negligence of Ms New a cause of the collision; and
(d) what, if any, damage, loss or injury was suffered by Mr Kalis?
The Evidence
Although, as noted above (at [17]), the learned Magistrate made adverse findings about the reliability of Mr Kalis in relation to the first claim for damages said to arise out of the 2007 collision, I shall not review and record a summary of that evidence. Insofar as it is relevant, I shall deal with it when I address the appropriate ground of appeal.
Further, I shall not address the evidence as to damages and, in particular, I shall not set out any of the medical evidence at this stage as it is not relevant in any significant way to the decision I must make.
The evidence for the plaintiff
Robert Kalis
Mr Kalis gave evidence that he was employed at an executive level in the Department of Health. He was 44 years old and had been awarded two postgraduate degrees.
He acknowledged that he had been in several prior motor vehicle collisions, in one or more of which he was a passenger, and in the others of which he had been the driver of the relevant motor vehicle.
Mr Kalis had known Ms Jia Liang as a friend since 2004 and for a period had been “more than friends”. He occasionally drove her as his passenger in his red Honda Civic motor vehicle, which had a manual transmission.
Mr Kalis then gave evidence of the collision he says occurred on the evening of 8 January 2008. He was driving on Mort Street at about 10:25pm with Ms Liang in his vehicle as a passenger. He came to the intersection of Mort Street and Cooyong Street, Canberra City. The traffic lights showed red in his direction and he stopped his vehicle. It was the first vehicle at the intersection on the south side and he was intending to drive directly through the intersection. He could not remember how many lanes there were in the road at that point.
When the traffic lights changed to green, he engaged the gears, activated the accelerator, let out the clutch and proceeded smoothly through the intersection. He said he was not good at estimating speed but thought he drove at approximately 10 kilometres per hour (kph).
As he moved off, he noticed a vehicle from the opposite direction moving forward and he slowed down. When the other vehicle slowed down, he accelerated forward. The other vehicle also accelerated and “zoomed” in front of him turning west, colliding with his vehicle. He estimated the speed of the other vehicle as between 15 and 20 kph. He said that the other vehicle turned when it was about three to five metres from him. He swerved to his right to try and avoid the accident. He did not recall sounding his horn.
The front left-hand side of the other vehicle then hit his vehicle on the left-hand side and dragged it to the left-hand side.
Mr Kalis backed his vehicle and stopped in Mort Street on the south of the intersection and the other vehicle was moved also near to there. He said that the other driver made a rude gesture at him, raised her voice and then, after she alighted from her vehicle, said, “I realise it’s my fault.”
Mr Kalis suggested that they contact the police. He examined his vehicle and saw the left-hand side was damaged at the bumper bar from approximately the mid-point to the left-hand side. He did not observe the damage on the other vehicle.
Mr Kalis said that he had a conversation with a taxi driver at the intersection and exchanged details with him. He later contacted the taxi driver and asked him to be a witness in the proceedings.
Mr Kalis then went to Civic Police Station about an hour after the collision had happened and reported it.
In cross-examination, Mr Kalis was asked about the previous collisions in which he had been involved and in which he had suffered injuries for which he had been compensated. Much of the questioning related to injuries and disabilities suffered by Mr Kalis and I do not need to address that, though some of it was clearly intended to be relevant to the credibility of Mr Kalis, which I will address separately.
In the cross-examination about his collision, Mr Kalis was asked a large number of quite detailed questions. Again, it is not necessary to rehearse them all.
He was asked about the configuration of the intersection. He recalled a slip lane to the left off Mort Street on his side of the intersection into Cooyong Street, but could not recall how many lanes there were otherwise in Mort Street. Shown a photograph, he agreed that there were two lanes leading north into the intersection, the right lane of which had an arrow permitting a driver to proceed straight ahead or to turn right, which was east into Cooyong Street and the left one had an arrow permitting a driver to proceed straight ahead or to turn left, via the slip lane, west into Cooyong Street.
Mr Kalis did not recall any vehicles stopped next to him. He recalled seeing the other vehicle, driven by Ms New, but no vehicles next to it. He recalled that vehicles were moving east along Cooyong Street before the traffic lights showing in his direction changed to green, but he did not recall whether there were vehicles there when the lights actually changed.
He was asked about the taxi and said that he saw the taxi when it was in Cooyong Street facing east about to turn left into Mort Street in a northerly direction at the time of the collision. He said that he waved to the taxi driver to stop because he wanted to ask him to provide information for him as a witness to the collision. He saw that the taxi driver had driven into Mort Street, completed a U-turn and returned to the intersection, where Mr Kalis spoke to him and took his contact details. The taxi driver told Mr Kalis, “I saw the accident”.
Mr Kalis said that his passenger, Ms Liang, got out of the vehicle and, at some stage, also spoke to Ms New.
He confirmed that, when the traffic lights showed green, he moved forward and at the same time as Ms New’s vehicle moved into the intersection. He was taken to his answers to interrogatories, though these were not included in the Appeal Book.
He did not demur, however, when it was suggested that the following question had been asked in the interrogatories and that he had answered as follows:
At the time you commenced to move from the stationary position, had the defendant moved from a stationary position? --- I do not recall seeing the defendant move from her stationary position as I commenced to move.
He suggested that the answer was not inconsistent with his earlier evidence. He said:
As I commenced to move, I did not see any other car moving. My commencing – I referred to engaging into the gear, activating accelerator and clutch and moving, gently moving forward. At that time I did not see. As I was moving, then I saw the car moving.
His evidence, however, had been:
… --- I moved off initially.
Was that jerkily, smoothly? --- Smoothly.
You said “initially”. Did something else happen then? --- Yes.
What was that? --- As I moved, I saw another car from the opposite direction moving forward as well.
This evidence did seem to me to be inconsistent with his answer to the interrogatory.
He was asked questions about the progress of the two vehicles up to the collision. He became quite insistent that the description of the collision was that “Ms New’s vehicle hit my vehicle” and resisted to the point of perversity when counsel suggested that his vehicle hit Ms New’s vehicle, even if the word was used in a neutral sense.
He identified that Ms New’s vehicle had collided with his vehicle on the left-hand side of her vehicle about halfway “through it”. He denied that his vehicle hit Ms New’s vehicle at the rear wheel and wheel arch. He denied that he had driven into the side of her vehicle or that she had “virtually completed the right turn at the time of the collision. He confirmed that he had “tried to steer off to the right”.
He said that he did look at the damage to Ms New’s vehicle but denied that it was over her left rear wheel arch; he said he saw “big damage to her vehicle” but not specifically wheel damage.
Mr Kalis was asked to make a drawing of the intersection and where the collision occurred. He did so. It was shown to the Court and later tendered. It was as follows:
He agreed that there were two lanes in Mort Street leading to the intersection but he maintained that Ms New’s vehicle was not towards or actually on the pedestrian crossing line in Cooyong Street, almost facing Northbourne Avenue.
Counsel then showed Mr Kalis various documents in which were recorded various accounts he had given of the collision. Set out below is a description of the document and the account given.
The first was a Personal Injuries Claim Notification. He was reminded of the diagram that appeared in this Form of 22 January 2008 as follows:
It was put to Mr Kalis that it was quite different from the drawing that he had made in Court, that which is set out above (at [54]). After pressing him over some quite unsatisfactory answers, he said that the drawing was correct and that he had signed the Form as correct, including the drawing, even though they were quite different.
The next document was the police report, the AFP Crash Report. Mr Kalis said that the police officer helped him with the drawing. The drawing was as follows:
Again, Mr Kalis was asked and agreed that he signed the Report as true and correct but he agreed that the actual damage to his vehicle was not, as stated in the Report, on the front right hand side but on the left hand side. He simply described it as an error. Nevertheless, he initially said the diagram “appears correct”, though he then admitted that the site of the damage was wrong and the diagram was inaccurate. His explanation was that he had been shaken at the time it had been made.
It was also accepted by him that, in the AFP Crash Report, he had not recorded that he had suffered injuries; he did not do so because, he said, “I wanted to see how I go for a few days before I see my GP”. He also described Ms New’s vehicle as “out of control”.
The next document was a report of Dr J Bodell, Orthopaedic Surgeon, who examined Mr Kalis and recorded the following history of the collision:
He was proceeding straight ahead when suddenly an oncoming motor vehicle made a right hand turn in front of him. The right front corner of his car was struck.
Mr Kalis was referred to Dr Bodell by his lawyers for a medico-legal report for the proceedings. In cross-examination, Mr Kalis agreed that the history of the collision that he gave to Dr Bodell was incorrect.
The next document was a report of Dr A Smith, to whom he had been referred also for a medico-legal report, but by the insurer of Ms New and her motor vehicle. Again, Dr Smith’s report recorded the incorrect history of the collision and, again, Mr Kalis conceded in cross-examination that he had given him the wrong information. Again, Mr Kalis suggested that he had made “an honest mistake” which, he said, was what happened each time he gave the incorrect information.
Then, Mr Kalis was taken to the medico-legal report of Associate Professor Peter Youssef, to whom he had also been referred for examination by the insurer.
Professor Youssef recorded that he was told that the vehicle that collided with Mr Kalis’s vehicle had hit his vehicle “at the front … over the middle and right side”, but the cross-examination concentrated on what Professor Youssef also recorded that Mr Kalis had told him, that the other vehicle was travelling “very fast”. In
cross-examination, Mr Kalis said that this was between 20 and 30 kph.
There was considerable cross-examination about the precise mechanics of the collision and I do not need to summarise it all. It is sufficient to note that Mr Kalis emphatically repeated that the collision occurred when Ms New’s vehicle “zoomed” in front of his vehicle. He had tried to swerve to the right but was unable to do so very much and the impact had been with the left side of his vehicle which had been “dragged to the other side when, at the time, he was driving straight through the intersection, though at the time Ms New crossed his path trying to swerve to the right”.
Mr Kalis was also asked a number of questions about the precise location of the vehicle and he made some further drawings; it was suggested that he had not placed Ms New’s vehicle close enough to the pedestrian crossing line in Cooyong Street. He provided a number of drawings but, in the circumstances, it is not necessary to reproduce or describe them.
He was challenged at some length on his description of Ms New being rude to him, suggesting that the location of the vehicles made it impossible. It did not seem to me to be impossible. Defence counsel, for example, suggested that he and Ms New “were facing in opposite directions”. To some extent, that was true of the vehicles, but the human head is not so immovable and I see no reason why Mr Kalis could not have seen Ms New making the rude gesture as he said, “though the window”, which appears to mean that she had thrust her arm through the window. Mr Kalis also said that he had heard Ms New say “something along the lines that it was our fault”. He also affirmed, when challenged, that later she said, “Sorry. I realise it’s my fault”.
Mr Kalis was called for further cross-examination after Ms Wang, a witness to the first collision, had given evidence. This further cross-examination was addressed to whether, when the traffic lights at the intersection showed green to Mr Kalis, he moved off at once; he said he did but it was put to him that he did not move off until Ms New had almost completed her turn into Cooyong Street. He rejected the suggestion. He denied that he was responsible for the collision.
While initially Mr Kalis had clearly mistaken the area where his vehicle had been damaged and repeated this error, it is not clear to me that this is necessarily the result of some more serious problem than error, as he described it, an honest mistake.
Memory is a complex mechanism and it is not difficult to accept from human experience that an error repeated becomes, in memory, a kind of reality that persists until shown to be an error.
In this case, the persistence of the error could only be detrimental to the case that Mr Kalis wished to present, since the physical evidence was inconsistent with his assertions rendering his case at risk because of the unreliable assertions he made. There was no gain for him and he had everything to lose, which makes his assertion of “an honest mistake” the more credible.
If, as the subtext of the case against him seemed to be, though never explicitly put to him in these terms, that he was an experienced claimant against insurance companies, attempting to gain unjustified damages, then his behaviour in making such errors is so basic and so damaging that it is difficult to accept for an apparently intelligent man, at least with his background, that there was some nefarious purpose in his behaviour or that his explanation must be rejected.
That, of course, does not diminish the unreliability of his evidence or the need for careful scrutiny of it. It does not diminish either the inference that I draw and which seems inescapable from his evidence that he was convinced, and wished to make it very clear to others, including the Court, that he was not responsible for the collision, but that Ms New was entirely responsible.
On the other hand, as with any evidence, it does not necessarily require rejection of it all. Indeed, the learned Magistrate did not do so, expressly preferring Mr Kalis’s evidence to that of some other witnesses on some issues. Further, some of his evidence was consistent with evidence given by defence witnesses.
Many of the answers Mr Kalis gave to questions including the way he answered a number of them in cross-examination, however, were quite unsatisfactory. It was clear on reading the transcript as fairly and objectively as possible that he prevaricated, was evasive and equivocated. He asked questions to be repeated and appeared to misunderstand clear and straightforward questions. The reading of his evidence itself suggests there was a problem with his reliability as an historian.
Hassan Mehmud Bajwa
Hassan Mehmud Bajwa was, in 2008, a taxi driver who said that he had been at the Mort Street – Cooyong Street intersection when the collision between Mr Kalis’s motor vehicle and Ms New’s motor vehicle had occurred.
Mr Bajwa had been a taxi driver for about a year before that date, driving about 40 hours a week. He had been driving motor vehicles for 16 years.
He noted that, at the time he was giving evidence about the collision between Mr Kalis’s vehicle and Ms New’s vehicle, the event was eight years old but he said that he did witness it. He could not, however, remember where he was, other than driving his taxi. He recollected that he had been going into Braddon from the city and had been “at the lights” at the intersection of Mort Street and Cooyong Street. He thought he had been on Mort Street facing Braddon, that is, on the same side of the intersection, it appears, as Mr Kalis. He had been in the front line, not behind any other vehicles at the intersection. Mr Kalis’s vehicle which had been on his right.
He said that he had stopped when the traffic lights facing him showed red and when they changed to green he had proceeded. He had seen Ms New’s vehicle on the opposite side with her right direction indicator light signalling change of direction to the right into Cooyong Street towards Northbourne Avenue.
He recalled that the vehicle beside him, presumably that driven by Mr Kalis, had been “maroon-ish” and the other vehicle, Ms New’s, had been white. This is consistent with other evidence.
He said that he had proceeded normally through the intersection following the change of traffic lights and he had not noticed anything abnormal about the other vehicles or their operation. He was, however, “certainly ahead” of the maroon vehicle.
He had driven into the intersection “a little bit quicker taking off” and he had seen that the white vehicle had not given way and had driven in front of the maroon vehicle and “they had a collision” which he had seen over his right shoulder. He had seen that
Mr Kalis had indicated to him to wait as he had been a witness to the collision, so he had parked. Mr Kalis had then asked him to wait and then had walked over to speak to the women in the white vehicle. He had then returned and Mr Bajwa had provided his details to him. He thought that Mr Kalis had not been at fault and that was why he had agreed to be a witness for him. Later, Mr Kalis had sent him a text message about the trial.
In cross-examination, Mr Bajwa was asked about a statement that he had given to an investigator for an insurance company, presumably that of Ms New and her vehicle. He had also sent an email to Mr Kalis which, he said, “says [sic] a bit different. I don’t know why it says different”.
He agreed that he had given a different version of the collision in the statement to the insurance investigator. He had read that statement before giving his evidence, but said that the evidence he gave was “purely on my memory today”.
He was then asked to draw a plan of the intersection which showed the following:
He agreed that when the traffic lights facing him had showed green, both he and Mr Kalis had driven off at about the same time, and Mr Bajwa thought that his taxi had been ahead of Mr Kalis’s motor vehicle but was unsure. He had not driven fast nor, as counsel suggested, did he “floor it” through the intersection.
It was suggested to Mr Bajwa that his version did not make sense for it would have required his taxi to have also collided with Ms New’s vehicle.
He was asked specific details about the collision but was unable to recall much of what had happened. He said that Ms New’s vehicle had been facing towards Northbourne Avenue. He considered that he had been ahead, well ahead, of the other vehicles and sure that Ms New’s vehicle had been on an angle, turning, and he showed this as the dotted line on the diagram he drew as the route taken by Ms New’s vehicle.
It was then put to him that if, as he said, he had looked over his right shoulder, he could not have seen the accident because “you’re not seeing directly behind you”. I have to say that this did not seem to me to follow at all. Physically, looking over one’s right shoulder could well, given the ordinary range of vision, allow a person to see what is behind them, perhaps not everything but, as in this case, what was behind but, on Mr Bajwa’s version, to his right.
Mr Bajwa also drew on the diagram a triangle on the north side of the intersection where he stopped his taxi. He saw the other vehicles moved and parked also; Mr Kalis, he said, parking behind him. No-one else suggested that Mr Kalis had parked his vehicle to the north of the intersection.
He did not accept, as it was put to him, that his version of the events was “absurd … rubbish”. It was put to him that he did not see the collision and he rejected that also.
Mr Bajwa was then asked about giving a statement to the solicitor for Mr Kalis and it was suggested to him that he told him that he did not see the collision. An email from Mr Kalis’ lawyer to Ms New’s lawyer was tendered. It included a statement:
I have spoken to a witness about this accident. His details are Mr Hassan Bajwa … He was the driver of a taxi (TX 70) that proceeded through the intersection before my client’s car. Before I go to the expenses of formally interviewing him, you might want to speak to him. His evidence, as I understand it, is that he proceed first through the intersection and my client proceeded next. He recalls not seeing but hearing the accident and pulled over next to McDonalds.
Mr Bajwa said that he did not recall saying that to Mr Kalis’s solicitor.
Mr Bajwa was also asked about his later contact with Mr Kalis. He said that he had sent Mr Kalis an email setting out his version of the collision. It was also tendered and, in it, Mr Bajwa stated:
I was coming from Northbourne Av and was turning left into Braddon in mort street i think its called but at that time i was standing at the red light. I was you coming from the city and you were going into Braddon in Mort street. The car which was holding 1 passenger in it, was coming from mort street and turing right towards Northbourne. while had the right to go straight where as the other driver had to give way to you but she didt ad hot you. I stopped there to give you my details so at you can use me a witness, because you were clearly not at fault.
This statement is reproduced accurately even though it has obvious errors in it, to which I have not drawn attention in the customary way.
It was put to him that this was “entirely different” from his evidence. That may stem from a misunderstanding of the geography. The initial description he gave appeared to suggest that Mr Bajwa had turned at Cooyong Street from Northbourne Avenue but it seems more likely that his version of his travel was that he drove his taxi from Northbourne Avenue then right into Bunda Street and then left (as he said) into Mort Street to go into Braddon, proceeding to the intersection where the collision occurred. I certainly do not see the versions as “entirely different” but, indeed, likely to be consistent. That, however, did not ameliorate the other inconsistencies in his evidence, especially those with other evidence in the case including from Mr Kalis.
In re-examination, Mr Bajwa was shown the statement he had given to the insurance investigator. He identified it and said it was correct. It was, so the transcript shows, tendered and admitted into evidence. I have read the statement and it seems to me to be entirely consistent with the oral evidence given by Mr Bajwa. No submissions were made to the contrary. The diagram which was attached was also consistent with the diagram he drew in Court.
It was, however, inconsistent with other evidence including that which Mr Kalis gave both in that Mr Kalis said Mr Bajwa had been in Cooyong Street, not Mort Street, and in that Mr Kalis did not see any vehicle next to him.
Jia Liang
A friend of Mr Kalis, Ms Liang, and who was a passenger in the vehicle at the time of the collision, gave evidence. She had known Mr Kalis since 2004 and had “dated” him until about 2006. She had previously driven with him. She had, herself, been a driver.
She said that she had been a passenger in Mr Kalis’s vehicle at about 10:30pm on 8 January 2008 at the intersection of Mort Street and Cooyong Street, Canberra City, when the vehicle had been facing north on Mort Street on the south side of the intersection, stopped as a red traffic light was showing in that direction. She did not recall any other vehicles around. She thought that there had been one or two lanes at the intersection.
She said that, when the traffic lights had changed, Mr Kalis had driven the motor vehicle smoothly into the intersection from zero speed to about 15 to 20 kph without other than a normal pause. She had noticed the white motor vehicle, Ms New’s vehicle, at the other side of the intersection facing south in Mort Street. She said that when she had seen it, the motor vehicle had been moving “[v]ery fast”. She had not seen it pause or slow. It had started turning about half way into the intersection, about 10 to 15 metres from Mr Kalis’ motor vehicle.
She had then heard a loud sound, a “big bang”, and “a huge impact to the car”. She said that the other motor vehicle had kept driving until it stopped about 15 metres away. It had been, at the time, facing north-east and ended up facing west on Cooyong Street towards Northbourne Avenue. Mr Kalis had then pulled his vehicle over on the south side of Cooyong Street facing towards Northbourne Avenue. This was, however, not what Mr Kalis had described.
Ms Liang was asked about what she felt and suffered from the collision but I do not need to address that further.
After the collision, Ms Liang had heard the driver of the other motor vehicle screaming and swearing at them from her vehicle. She had not been paying attention to the hands of the other driver. She and Mr Kalis had both alighted from their vehicle and the other driver had alighted from the other vehicle. She thought that the two drivers had exchanged details. The other driver had then sat on the side of the road and said, “Sorry, I realise this is my fault”.
Ms Liang had seen a taxi on that evening, waiting at the intersection, facing east on Cooyong Street. She had seen Mr Kalis walk over to the driver and speak to him, but had not heard the conversation. Later she had gone with Mr Kalis to report the collision to the police.
Ms Liang was asked in cross-examination about her knowledge of the intersection and, although saying that she was familiar with it, said that she was not sure how many lanes there were on either side of the intersection as it was “not something that [she] would pay very … much attention to”.
She could not remember whether, when Mr Kalis had driven up to the intersection, his vehicle had been in any particular lane and she had not noticed any vehicles beside them. She had, however, seen one or two vehicles at the other side of the intersection, waiting. She did not recall whether these vehicles had had their traffic indicator lights activated.
She said that when the traffic lights had changed to green, Mr Kalis’s motor vehicle and the one opposite had both moved forward “at … about a similar time” as the other vehicle turned right across the intersection. She had not noticed any vehicles in Cooyong Street.
She described the collision, saying that Mr Kalis’s motor vehicle had been hit on either the front or the side, as best she could remember, the front left she thought.
Ms Liang was asked some questions about her discussions with a lawyer about the injuries she had sustained in the collision. She identified a Personal Injury Claim Notification form on which she had signed the authorisation for Ms New and her insurer to have access to various records. She agreed that she was signing the form “in part as being [sic] the information was correct”, though she did not recall having been shown the details on the form which her lawyer had completed in it.
She was taken to the diagram on the form showing the collision. The form was admitted into evidence. The diagram appears to show the impact point of Mr Kalis’s motor vehicle on the right hand front side of Ms New’s vehicle. She agreed that the collision occurred at the south-west corner of the intersection.
She was asked about the taxi and confirmed her earlier evidence. She said that the taxi had not moved from its position at the north-west corner of the intersection and the driver had stayed in the taxi. She had not seen him after that.
It was put to her that Mr Kalis had only spoken to the taxi driver after he had spoken to Ms New. She disagreed. Her evidence seems consistent with that of Mr Kalis who said that he had waved to and had then spoken to the taxi driver, had asked him to wait and had then spoken to Ms New.
She recalled Ms New being on the phone at some stage and denied the suggestion that Ms New had not admitted fault for the collision, affirming that she had. She also denied that she had withdrawn her claim because she realised that Ms New was not at fault for the collision; she said the claim was a minor issue and she simply preferred not to proceed.
Ms Liang was asked further questions about the dynamics of the collision. She denied the suggestion that Mr Kalis had not driven off “straight away” after the traffic lights changed to show green.
She denied discussing the collision with Mr Kalis at Court but said that she had spoken to him just after the collision about it, though not more recently, the last time being the end of 2013 when he had asked her to come to Court.
Defence counsel then called for the statement made apparently to police by Ms Laing. It was not in Court and, indeed, Mr Kalis’s counsel said that it would “take some time” to answer the call.
I interpolate to note that a call was made in this case from time-to-time for documents to be produced. It seemed to me that both counsel approached the procedure as if it substituted for a subpoena to produce documents even were they not in Court at the time of the call. This may now be an accepted practice, but it is not one of which I am aware. The call for documents is, as I understand it, a call to produce a document which is in Court. See O’Born v Commissioner for Government Transport (1959) 77 WN(NSW) 81 at 82; Justice Athol Moffitt, “Procedures at a Common Law Trial regarding Subpoenae Duces Tecum, Notices to Produce and Documents of Parties and Strangers” in Harold H Glass QC, Seminars on Evidence (Law Book Co, 1970) at 11-21. It is not an alternative to a subpoena requiring a party on whom a call is made to search out and produce documents which may be held out of court. It is, as Mason J pointed out in Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 144, a common law rule and so survives the enactment of the Evidence Act 2011 (ACT).
The calls made were not requests for the purposes of s 167 of the Evidence Act. They were not designed to test any documentary evidence, things or representations to be tendered for Mr Kalis: Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324 at [49]-[50].
While co-operation between practitioners is to be applauded and encouraged, care should be taken not to elevate a matter of courtesy into an obligation with consequences. The common law call cannot impose an obligation other than to produce a document that is in court and no inference can be drawn from the failure to produce a document that is not in court and that may require a search or another person (even instructing solicitor or client) to give it to counsel from out of court, if that would answer the call. Ordinarily, a subpoena is required to impose that obligation.
In this case, the cross-examination was sought to be adjourned pending receipt of the statement.
So far as I could tell, however, the document was not produced and Ms Liang was not further cross-examined.
Ms Laing was re-examined. In re-examination she said that, to the best of her recollection, Mr Kalis had only gone over to see the taxi driver once.
It was very difficult to assess Ms Liang’s evidence. For the most part, it did corroborate Mr Kalis’s evidence, but there were some odd inconsistencies. Her description of the location of the collision on Ms New’s vehicle was inconsistent with the physical evidence. Her evidence about the conduct of Ms New and her passenger, Ms Gurney, was inconsistent with their evidence and did not entirely corroborate Mr Kalis’s evidence.
Paul Crabb
Mr Kalis referred to speaking to a solicitor, Paul Crabb. Mr Crabb was called to give evidence and produce documents.
His evidence-in-chief concerned the first collision in Yarralumla, not the subject of this appeal. In cross-examination, however, he was asked about the Personal Injury Claim Notification form that he had completed on instructions from Mr Kalis for this collision. He confirmed that he had “filled out” the document and identified his handwriting on it. His attention was directed to the diagram on it and he agreed that it was not intended to be precisely accurate. He was familiar with the intersection but noted that, for example, he had not shown the traffic lights or dual carriageway.
He said that the diagram showed, on his instructions, where in the intersection the collision had occurred and that he would “then draw the diagram that I can that best represented those instructions”.
In re-examination, he agreed that he had asked what part of each vehicle was struck but said “it’s more in terms of whether it was a T-bone”, but he had prepared the diagram and shown it to Mr Kalis. He also agreed that he had had the client check the diagram “but not … engineering perfect”, rather “in terms of generally the movement of the vehicles and the point where the two vehicles came into collision”.
Documents
A number of documents were tendered and admitted. These included the Plaintiff’s Tender Bundle. So far as this appeal is concerned, the relevant documents were:
· The Australian Federal Police Crash Report signed by Mr Kalis on 8 January 2008. This has been the subject of comment earlier.
· The Australian Federal Police Crash Report signed by Ms New on 9 January 2008. This set out a version of the collision which was different from that of Mr Kalis but consistent with her evidence.
· A repair quote for Ms New’s vehicle dated 11 January 2008, referring to repairs to be made to the left hand rear of her vehicle.
· A supplementary quote for Ms New’s vehicle dated 31 January 2008, referring to repairs to be made to the rear left-hand wheel.
· A Personal Injury Claim Notification Form signed by Mr Kalis. This has also been the subject of earlier comment.
· NRMA records for the repair of Mr Kalis’s vehicle, confirming repairs to his vehicle at Braddon Smash Repairs.
In addition a bundle of documents were tendered and admitted. They were documents produced on subpoena from Aerial Taxi Cab Co-Operative Ltd. The documents included records of a job undertaken by Mr Bajwa on 8 January 2008 which was the “tracking information” for Mr Bajwa that evening. They showed him at an address in Deakin at 10:15pm on that day. It then showed him at the intersection of Cooyong Street and Northbourne Avenue at 10:28pm and at the Cooyong Street and Mort Street intersection at 10:32pm. This does suggest that the taxi was not in Mort Street at the intersection alongside Mr Kalis’s vehicle.
The evidence for the defendant
Emma Barbara Joy New
The driver of the vehicle at the opposite side of the intersection to where Mr Kalis was in his vehicle was Emma Barbara Joy New. She owned the vehicle, a Holden Barina, and recalled that, on 8 January 2008, in the evening, she had driven it through the “Drive Thru” at the McDonalds Fast Food Restaurant in Mort Street.
She had a passenger in her vehicle, Courtney Gurney. They had purchased some fast food and had been heading to Florey. Ms New said her vehicle was facing toward the city, which I accept is southbound, in the lane closest to the median strip preparing to turn right. At the time they had arrived at the intersection, the traffic lights had showed red. Ms New’s motor vehicle had been first in line at the traffic lights.
The traffic lights had changed to green. Ms New said that she had not been “too sure” about the intersection configuration. She had noticed one motor vehicle opposite her. She had thought it was in the lane closest to the median strip. This seems unlikely to have been the case.
She then said:
Lights turned green, I waited a couple of seconds because I wasn’t too sure about the intersection. As the car in front of me hadn’t moved, opposite me hadn’t moved, I thought I had right of way. As I went to take off, I almost stalled the car, so I had to pull myself together and get the car back up to idle, and I took off and as I went around the intersection I was almost fully through when I got hit on the rear passenger side.
She said that she had waited for about five seconds and the other vehicle had not moved in this time. Her vehicle also had a manual transmission and she stated that she had nearly stalled it, but did not; the vehicle “bunny hopped” a bit and “almost fully stalled”. She said she had had to “get it back up to idle” and then had been able to take off. By this stage, she said, the other vehicle had still not moved. She had proceeded with the right hand turn, as if she had right of way.
She said that, as she had proceeded through that turn, she had not seen the other vehicle move at any time; indeed, she had not seen it moving at any time before the collision.
She said that, at the time of impact, the front of her vehicle had been on the pedestrian line in Cooyong Street. That is the line painted on the road across Cooyong Street, parallel to Mort Street to indicate where, when allowed, pedestrians could cross. In the impact, her vehicle had moved about half a metre to the right.
She had taken a couple of seconds to realise what had happened and then had started to cry. She had stopped her vehicle straight away having realised that the other vehicle had collided with her vehicle and then had alighted to look at the damage. She had seen damage to the rear passenger side part of her vehicle and that the wheel had been at an angle, so, she said, the axle had been damaged.
She had seen the other motor vehicle and had seen Mr Kalis who had been telling her that the collision had to be reported to the police. She had told him that she would move her vehicle out of the traffic, so she had got back into it and had driven it to the left hand side of Cooyong Street so that she could exchange details with Mr Kalis.
Mr Kalis had parked his vehicle on the corner of Mort Street and Cooyong Street on the gutter.
She had then telephoned her parents and had asked them to come and collect her. When she had finished the telephone call, she had given the phone to Ms Gurney, who had taken some photographs of Mr Kalis’s vehicle and she had then looked at his vehicle, noting a small dent on the driving side front panel just near the headlights.
In Court, she identified photographs of the damage and the report that recorded her notification of the collision to police the next day.
She denied having made a rude gesture to Mr Kalis. Ms New did not recall having said, “I’m sorry, it’s my fault”. She said, however, that she was “the type of person who, even though it’s my fault, I say sorry because I hate seeing other people put out” but she did not remember saying it.
She recalled that a taxi driver had arrived on the scene. She said that after she had moved her vehicle and had got out of it again, and after she had finished speaking on the phone to her parents, she had seen a taxi turn right onto Cooyong Street off Mort Street and the driver had handed a business card to Mr Kalis. She thought this had happened five to 10 minutes after the collision.
Ms New identified a statement that she had made to an insurance company investigator on 17 May 2008. The statement was tendered and admitted. It was generally consistent with her evidence.
In cross-examination Ms New said that she had, at the time of the collision, been driving for some time; she gained her learner’s permit when she was 15 years and 9 months old and her provisional licence when she was aged 17. She had been aged 19 at the time of the collision and had still held her provisional licence. She agreed that she had been a relatively inexperienced driver.
Ms New was a little unsure of what she had bought at the McDonalds Restaurant but was sure that she had not been eating while waiting at the traffic lights. She had been talking to Ms Gurney who had been eating a cheeseburger.
She said that when the traffic lights changed she was not sure whether she had had a right of way because there was no arrow on the traffic lights.
When the other vehicle, Mr Kalis’s vehicle, had not moved, she thought that she must have had the right of way.
She agreed that the road rules provided that, when there is a green circle light with no green arrow, she was permitted to proceed directly ahead or make a turn in either direction providing it was safe to do so and that right turning vehicles must give way to oncoming or left-turning vehicles not using a slipway. She agreed that she did not have right of way that evening and, insofar as she thought that, she was wrong.
She denied, however, that she had not exercised reasonable care because, she said, Mr Kalis’s vehicle had not moved and she had thought that she could proceed safely. She did agree, however, that she had driven straight through the intersection, assuming that she had right of way.
She was asked whether she had actually monitored the other vehicles around her as she drove through the intersection and answered, “I’m unsure”. She did say that she was always mindful when she drove through intersections and believed that she had been looking out for traffic, but she said that this was on the basis of what she normally does.
She confirmed that she had not seen Mr Kalis’s vehicle move prior to making her turn or at all prior to the collision. She did not agree that she had not been paying proper attention as she had driven through the intersection.
The stalling of the vehicle was discussed. She said that it was not a common occurrence. She did not explain how it had happened on this occasion but that the vehicle “bunny hopped”, going from first gear into second gear. It was, she said, a reflection of her being a relatively new driver. She agreed that someone watching the vehicle would have seen it move forward, slow down and then move forward again. This was consistent with Mr Kalis’s evidence. The vehicle, however, had not come to a complete stop. She agreed it had been another distraction while she was driving.
Ms New was taken to the report she made to police in which she had said, “As I was halfway round the corner, he [Mr Kalis] began to drive forward and hit me”. She agreed that this meant that she was “halfway through the curve that [she] would execute as [she turned] right”. This was a little different from the other evidence she gave about how far she had travelled through the intersection. When asked why she had not just stopped, she said that she had not actually seen Mr Kalis move his vehicle forward. She said that she had simply assumed that he moved forward because of the collision. She did not see his vehicle move into the intersection.
She said that, because she had not seen the opposite vehicle move, she had moved right straight away, immediately turning into the intersection. She had not proceeded directly ahead and then paused, which would have given her more time to see the traffic, because she had thought she had had right of way.
Ms New denied that she had made a “normal” take off from the intersection and repeated that she had paused for about five seconds, though she had not mentioned that in her statement to the investigator. She said that she could remember, however, as this was her first collision and court case.
She denied that she had been annoyed after the collision or that she had sworn at Mr Kalis.
She was asked about some differences between her evidence and the statement she had made to the investigator about who had telephoned her mother and gave an explanation, but was unsure about the sequence of events and precise details.
She agreed that she may have said sorry or apologised at the time but she did not think that she had said that if was her fault.
Ms New was re-examined about the damage to her vehicle and she confirmed that the damage was to the rear panel. She also repeated that her vehicle was travelling at less than 60 kph. She said that she did not “take off in a fast manner”, but started to speed up slowly to get around the corner in a “normal timely manner”.
She also said that, while proceeding through the intersection, she had been “still looking out for traffic” and that the other vehicle had not moved. Despite her comment earlier noted above (at [155]), she added that the collision had not occurred until she had been almost facing Northbourne Avenue, when she had been looking straight ahead, presumably along Cooyong Street to Northbourne Avenue and beyond, because that was the way she had been moving so as to see what was in front of her. She was adamant that she still had not seen any other vehicles moving.
Ms New’s evidence was relatively straightforward, but she did have a number of uncertainties, inconsistencies and lapses of memory. It was, of course, difficult to make a clear determination of the quality of her evidence without having heard and seen her. Some parts of her evidence were inconsistent with that of Mr Kalis and Ms Liang, but some showed some consistency with their evidence. For example, she admitted that she was the kind of person who would say, “Sorry” after an incident. That was an honest concession and Mr Kalis, with whom Ms Liang agreed, may have heard that as an admission. Despite her concession, Ms New denied that she had said it.
Courtney Louise Gurney
The passenger in Ms New’s vehicle was Courtney Louise Gurney. She confirmed that she and Ms New had driven through the McDonalds Fast Food Restaurant, where she had purchased a cheeseburger.
She said that the vehicle had moved from the McDonalds Restaurant onto Mort Street to the set of traffic lights where it had stopped as the traffic lights had been showing red. The vehicle had been in the lane closest to the median strip. At that time, Ms Gurney had been eating her cheeseburger.
Ms Gurney said that she did not recall any other vehicles around the intersection. She said that, as Ms New’s vehicle had moved off, she had been eating and looking down. The next thing she recalled was when she had felt the vehicle being hit in the rear on her side.
She said that she and Ms New had alighted and had spoken to the driver and passenger of the other vehicle. Ms New was crying. Ms Gurney had taken photographs on Ms New’s phone of the front of Mr Kalis’s vehicle and of the damage on Ms New’s vehicle, which was over the top of the passenger side rear wheel arch.
She could not recall whether the wheel was damaged but could recall that they had had to arrange for a tow truck, so she assumed that the vehicle had not been able to be driven. She identified the photographs that she had taken.
She, too, had made a statement to an insurance investigator. It was tendered as part of the defendant’s tender bundle and admitted.
Ms Gurney was taken to the statement in cross-examination but not in detail. It was relatively consistent with her oral evidence. In it, Ms Gurney stated that she thought Ms New’s vehicle had been travelling at between 10 and 15 kph through the intersection. She said in cross-examination that it had not been as fast as 20 kph.
She agreed in cross-examination that, at the time of the collision, Ms New had been a relatively inexperienced driver, but said that she thought that she was a good driver.
Ms Gurney said that, while she had purchased and had been eating a cheeseburger, she could not recall what Ms New had purchased but that she had not been eating it. She did not recall whether Ms New’s vehicle had nearly stalled. She said that Ms New had followed a curved line of turn into Cooyong Street, but then said that she had driven straight and then turned right. It was a little difficult to follow her explanation; indeed, she commented, “it’s hard to explain”. She agreed that Ms New took no action to avoid the collision, such as swerving, braking or speeding up.
She did not notice Mr Kalis’s vehicle. After the collision, she or Ms New had rung Ms New’s mother. She had not heard Ms New say “Sorry. I realise it’s my fault” and said it was not feasible that she used those words, but then conceded that, as part of being in shock, Ms New might possibly have used those words.
Ms Gurney did not give a lot of evidence about the critical issues in the case, as she was not watching what was happening, but was looking down, eating her cheeseburger. There was some inconsistencies with the evidence of Ms New, however, but on collateral issues, such as the details of the telephone call to Ms New’s mother.
Documents
The Defendant’s Tender Bundle was admitted. So far as liability was concerned, it consisted of:
· The AFP Crash Report made by Mr Kalis on 8 January 2008. This was part of the Plaintiff’s Tender Bundle.
· The Personal Injury Claim Notification form of Mr Kalis received by the insurer on 18 February 2008. This was also part of the Plaintiff’s Tender Bundle.
· The Personal Injury Claim Notification form of Ms Liang received by the insurer on 16 May 2008. This has been referred to earlier.
· The AFP Crash Report made by Ms New dated 9 January 2007 [this is obviously dated in error as the accident was in 2008]. This was also part of the Plaintiff’s Tender Bundle.
· A statement of Ms New dated 7 May 2008.
· A statement of Ms Gurney dated 17 May 2008.
· The photographs taken by Ms Gurney.
· An email from Mr Crabb to solicitors for Ms New. This has been referred to earlier.
In Ms New’s statement she described what had happened when the traffic lights showed green in her direction:
I waited a moment and meant to move forward but almost stalled the car. I then drove off after realising the other vehicle had not moved forward. I then went to make the right hand turn at a speed of about 10 kph.
She had also stated that she had asked Ms Gurney to telephone her mother and that she then had spoken to Mr Kalis, exchanging details and after that spoke to her mother. She stated that there had been no other witnesses to the collision other than the occupants of the vehicles and no vehicles stopped to assist.
Although not a specific ground of appeal, I note that particulars provided by Ms Liang in separate proceedings she took against Ms New were included in the Defendant’s Tender Bundle. They were the subject of objection. That objection was overruled. It should not have been. The particulars were not admitted by Ms Liang who does not appear to have been shown the document and who did not identify it as containing instructions that she gave to her then solicitor, Mr Crabb. The document was not relevant.
Other than this, it is not necessary to address the documents separately, though I have read them. The bulk of the documents were, in fact, part of the Plaintiff’s Tender Bundle which I have referred to above (at [129]).
I note in passing that an affidavit made by Ms Wang, a passenger in Mr Kalis’s vehicle in the first collision, the subject of the other claim, was also included in the bundle. It was an affidavit in answer to interrogatories. It is not directly relevant to this appeal because it related to the other claim by Mr Kalis against the first defendant in the Magistrates Court proceedings. The affidavit had, however, been filed in other proceedings, namely proceedings commenced by Ms Wang, not the proceedings in the Magistrates Court from which this appeal has been taken. As such, it could not have been used in the proceedings below without the leave of the court in which it was filed. That leave would, presumably, require notice to the parties in those other proceedings. See the explanation for this prohibition in Glanville v Harris [2017] ACTSC 110; 321 FLR 220 at [15]-[17]. Neither counsel nor the learned Magistrate seemed aware of the rules established by authority, including that of the High Court, as to the admission of discovered documents and affidavits in proceedings other than those in which they were discovered or made. I add that these rules are particularly apt to an affidavit in answer to interrogatories which a party is obliged to make; it is unlike other affidavits which often the person makes by choice. The admission of the affidavit in this case breached the prohibition and should not have been admitted. See also Council of the Law Society of the ACT v Legal Practitioner [2017] ACTSC 329.
I note also that a document in the Defendant’s Tender Bundle that was ruled as inadmissible was included in the Appeal Book. Documents that are ruled inadmissible should not appear in the Appeal Book and appropriate redactions should be made.
Expert Report of William Keramidas
Also tendered and admitted was an Expert Report, dated 19 October 2011, prepared by William Keramidas, who was the Director, Founder and Principal Forensic Engineer and Reconstructionist of William Keramidas & Associates Pty Ltd. He holds the qualifications of Associate Diploma [of] Arts (Police Studies), Bachelor of Arts (Police Studies), Bachelor of Applied Science (Technology) and Master of Engineering Science (Traffic and Transportation). He had undertaken a wide range of training courses in accident investigation and reconstruction. He had been consulting for over 20 years in forensic engineering and collision reconstruction and had been qualified as an expert in the County Court of Victoria and the Supreme Court of Victoria.
Certain parts of the Report were challenged by counsel for Mr Kalis. Some of the objections were upheld and the challenged portions not admitted. The whole Report, however, appeared in the Appeal Book, unredacted. That is inappropriate; where portions of documents have been the subject of objection which is successful, the document should be redacted so that only the actually admitted evidence is reproduced in an Appeal Book.
Some of the objections were dealt with by admitting the portions subject to objection for a limited purpose. This is an important matter because of the consequences. For example, under s 60 of the Evidence Act, hearsay evidence admitted for a purpose other than proof of an asserted fact becomes, by its admission, available as proof of an asserted fact, though its weight may be limited: Lardil Peoples v Queensland [2000] FCA 1548 at [26].
Where, however, evidence is to be admitted for a limited purpose, it is important that a direction be given under s 136 of the Evidence Act, that it be clearly recorded, and made clear in the Appeal Book in an appropriate way.
Mr Keramidas set out, in his Report, the documents provided to him and provided with certain assumptions as follows:
1. The accident occurred between approximately 10.25pm and 10.54pm on Tuesday, 8 January 2008 at the intersection of Mort and Cooyong Streets, Braddon in the Australian Capital Territory.
2. The Plaintiff was the driver of a red Honda Civic sedan, bearing registration number YAO83Z.
3. The Defendant was the driver of a 2006 white Holden three door hatch Barina, bearing registration number YEB78N.
4. The Plaintiff’s vehicle was stationary in the northbound lane of Mort Street at its intersection with Cooyong Street, facing a red traffic light.
5. The Defendant’s vehicle was stationary in the southbound inside lane of Mort Street at its intersection with Cooyong Street, facing a red traffic light. The right turn indicator on the Defendant’s vehicle was flashing.
6. After the traffic lights the Defendant faced turned green, she waited a moment then almost stalled her car, then entered the intersection to make a right hand turn into Cooyong. At this point, the Plaintiff’s vehicle remained in Mort Street.
7. When the Defendant had almost completed her turn into Cooyong Street and had almost entered the inside lane of the westbound lanes of Cooyong Street, her vehicle was struck on the back rear quarter panel on the passenger side over the rear wheel by the front left hand corner of the Plaintiff’s vehicle.
Mr Keramidas set out the actions and investigations that he had undertaken, including gaining access to the AFP Crash Reports provided by Mr Kalis and Ms New to which I have earlier referred. He also had access to the affidavit Mr Kalis made in answer to the interrogatories administered by the second Defendant and extracted “items of relevance” from them. He had access to and reproduced the photographs taken by Ms Gurney.
Despite my concerns expressed (at [178]) about their relevance, he had access to the particulars that Ms Liang’s lawyer had provided in the proceedings she had commenced. While those may not, in the event, have been admissible in the proceedings, there can be no particular criticism of Mr Keramidas having had access to them as material used in his attempt to reconstruct the collision. Though if, correctly, they had not been admitted, this may have affected the validity of his Report.
Mr Keramidas inspected the site and included in his Report a helpful aerial photograph, extracted from Google Earth, of the intersection which he described in some detail.
He then analysed the collision by assessing the vehicle damage, the impact configuration, the impact location, the impact severity, the time/distance relationship and, perhaps more problematically, an assessment of the various versions of the events.
As to the assessment of the vehicle damage, he noted that the damage to Mr Kalis’s vehicle was about a five to 10 cm penetration of the passenger side of the front bumper bar concentrated in an area about 15 cms wide. The impact did not cause the bumper bar to be displaced nor cause damage to the headlight assembly directly above. He considered the damage to be consistent with a very low speed impact, which he noted was sometimes colloquially referred to as “car park speed” and which, in later evidence, he agreed was between 10 to 20 kph.
The damage to Ms New’s vehicle consisted of contact damage to the rear passenger side guard and wheel, with the wheel being out of alignment on the vertical axis. There was no identifiable damage forward or aft of that damage. He concluded that the identified distortion of the rear wheel required an impact force of close to a 90° angle to the wheel. He did not comment on the speed that would have produced the damage on impact, but that may be included in his comment that the damage “is consistent with the observed damage” on Mr Kalis’s vehicle.
Based on the location of the damage to the two vehicles, he identified the likely impact configuration, which he diagrammatically represented as follows:
While the impact configuration identified the relative orientation of the two vehicles, he also used that to identify the likely impact location. He considered the angle of impact to be about 60° which, he said, required Ms New’s vehicle to have been most of the way through the turn with Mr Kalis’s vehicle travelling straight ahead. That meant that Mr Kalis’s vehicle was travelling in the lane closest to the kerb with Ms New’s vehicle having reached the eastern side pedestrian crossing on Cooyong Street, which he represented diagrammatically on the diagram which is a schedule to these reasons.
I note, however, that the angle did not necessarily fix the location of the collision in that sense. So long as the relationship of the axis of the two vehicles was 60°, Mr Keramidas agreed that the configuration of the vehicles could be notated to some extent.
That could, for example, show Ms New’s vehicle still turning, so that instead of being east-west, it was more south-west, and Mr Kalis’s vehicle not directly north but more north-east. That would, for example, be consistent with Mr Kalis swerving to the east in order to avoid the collision, consistent with his evidence.
Thus, this calculation could not definitively negate Mr Kalis’s evidence that he had tried to avoid the collision nor necessarily locate Ms New’s vehicle as having been as close to the pedestrian crossing line in Cooyong Street as she said.
He considered that Ms New’s vehicle had travelled 22.9 metres to the point of impact and that Mr Kalis’s vehicle had travelled 15.6 metres.
Mr Keramidas then considered impact severity. He noted that bumper bars are meant to be constructed to withstand full width impacts of about 8 to 11 kph prior to collapsing, but that manufacturers regularly do not achieve this and they can collapse at lower speeds. At the site where the bumper bar on Mr Kalis’s vehicle collided with Ms New’s vehicle, the load was concentrated. The impact loading was low because the bumper bar had not collapsed back onto the vehicle and had not damaged the headlight assembly. He described the collision impact as likely being “a nudge”.
He did, however, make no comment on what force would be required to cause the identified damage to Ms New’s vehicle and, in particular, to cause the alignment distortion of the passenger side rear wheel, which seems to me to be likely more than a “nudge”.
As to the time/distance relationship, he noted that the relative distances likely travelled by the two vehicles meant that Ms New’s vehicle commenced its motion first. He considered that to engage the manual transmission would take about one second.
Taking Ms New’s account that her vehicle nearly stalled before commencing to move into the intersection, he considered that an additional two seconds could be added to her departure delay.
The shorter distance to be travelled by Mr Kalis’s vehicle, suggests that it entered the intersection after Ms New’s vehicle had done so. Mr Keramidas put it that his vehicle had started after Ms New’s vehicle commenced the right turn, but this is a vague and unclear description since both Ms New and Ms Gurney suggested that the vehicle had followed the broken line which immediately arced from the end of the median strip at the northern side of the intersection round to the median strip on Cooyong Street. This meant that the conclusion Mr Keramidas expressed that Ms New’s vehicle’s “turning motion … should have been apparent” to Mr Kalis is a problematic conclusion in the circumstances.
Mr Keramidas then conducted what he described as an assessment of the various versions of events. While it is appropriate for an expert to point to matters within his or her expertise which is relevant to an assessment of assertions of fact made by witnesses, including parties, it is not part of an expert’s task to conduct the evaluation that the Court makes, even with the abolition of the ultimate issue rule by s 80 of the Evidence Act.
The danger of such comments is, as described by Dawson J in Murphy v The Queen (1989) 167 CLR 94 at 130-1, where his Honour pointed out, though speaking of a jury which was the judge of the facts in that case, that the danger of admitting inadmissible expert evidence is that where it trespasses on the role of the jury:
it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its preparation may, if it is wrongly admitted, give to it an authority which is not warranted.
While, as Sir Richard Eggleston has pointed out in Evidence, Proof and Probability (Wiedenfeld and Nicolson, 2nd ed, 1983) at 145, that a function of an expert is to be an advocate, Sir Richard continued at 154, “he [sic] is not to do the jury’s fact-finding for it, where this depends on accepting one or the other set of contradictory witnesses” particularly as the expert will not have seen the witnesses. See Re W (Sex Abuse: Standard of Proof) [2004] FAMCA 768; 32 Fam LR 249 at 264; [39]. As Dixon CJ said in Clark v Ryan (1960) 103 CLR 486 at 491, it is not proper “to use the [expert] witness to argue the plaintiff’s case and present it more vividly and cogently before the jury”.
The ground claims that his Honour should have given “some weight to Mr Bajwa’s evidence”. Mr Bajwa’s explanation of what happened, however, had other problems. He said that Mr Kalis drove his vehicle into the intersection normally when the traffic lights changed to show green, but that he, Mr Bajwa, was faster in his taxi. If that is so, then either Ms New’s vehicle would have to have collided with the taxi or Mr Kalis would have had to have stopped and waited after entering the intersection because the taxi had to get through to allow Ms New’s vehicle to move into the path of Mr Kalis’s vehicle after the taxi drove through. The first did not happen and no-one suggested the latter.
Mr Hausfeld did not, in his written or oral submissions, identify what of Mr Bajwa’s evidence should not have been rejected so as to assist the case that Mr Kalis was making. His Honour did not find that there was no collision; his Honour did not find that Mr Bajwa was not there; his Honour did not find that Mr Kalis had not spoken to him. Indeed, his Honour preferred the evidence of Mr Kalis to that of Mr Bajwa as to the location of the taxi. I assume that this slight support for Mr Kalis’s reliability is not what this challenge is designed to show was an error.
There was a reasonable basis for his Honour to reject Mr Bajwa’s evidence. The failure to refer to the taxi company records played no relevant part in that and did not override or otherwise justify the reasons for rejection of the evidence.
(h) His Honour erred in failing to provide adequate reasons for his findings.
There is no doubt and, indeed there was no contest, that his Honour’s Reasons are not well crafted and, at some points, are very difficult to understand.
Mr Hausfeld identified a number of the paragraphs, and some have been reproduced earlier in these reasons, where the Reasons were problematic. Certainly, the Reasons appear not to have been subject to any kind of proof-reading that seems would likely to have identified some of the more egregious errors (e.g. “plane” for “plaintiff” and “writing” for “right in”) and, hopefully, addressed some of the odd words, unfinished sentences, impenetrable statements and erroneous quotations.
The real challenge was that, as a result, an important purpose of such reasons was not met in that it was not possible to tell from them as to why the evidence of Mr Kalis and his witnesses was rejected.
As I have noted above (at [358]), the exposure to the parties and to any appeal court of the reasoning of the judicial officer is an important purpose of such reasons. One important issue as identified by Hayne J in Waterways Authority v Fitzgibbon at 1835; [131], is the “analysis … of the competing evidence” and the “explanation proferred for rejecting it”. His Honour added:
The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge’s reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick’s evidence was to be preferred to that of other witnesses.
[emphasis included]
While such explanation is very important, the lengths to which a judicial officer is expected to go to discharge the obligation must not be overstated. Merely to say that the evidence of one witness is preferred over the evidence of another is inadequate: Palmer v Clarke (1989) 19 NSWLR 158 at 170. More is required. Unfortunately, much of his Honour’s reasoning was of this kind.
On the other hand, there is only so much that can be said about, for example, demeanour, the effect of which can, of course, be overstated: Shearer v Gilmore [2014] ACTSC 148 at [76]. See also Fox v Percy [2003] HCA 22; 214 CLR 118 at 129; [30]-[31].
His Honour did, however, identify relevant inconsistencies in the evidence of the plaintiff’s witnesses, albeit in a way that was often opaque or to be understood only by inference and this also applies to the reasons for rejecting some evidence or preferring other evidence.
While his Honour’s Reasons were, for these reasons, unsatisfactory, it was reasonably clear how much of the evidence his Honour rejected was unsatisfactory.
It seems to me that it is likely that I would have, were it necessary to do so, found that the evidence his Honour rejected was properly rejected and that while the process of fact finding miscarried, it was not such as to require a new trial.
His Honour erred in applying the wrong standard of proof to his consideration of the matter.
The learned Magistrate set out early in his Honour’s Reasons the onus that Mr Kalis had to discharge, saying:
The plaintiff had the onus of establishing that it was more probable than not that the first and second defendants drove their respective motor vehicles in the manner, which the plaintiff alleges, such as to cause injury, to the plaintiff.
There can be and was no criticism of this statement.
This ground of appeal, however, was directed to three matters. In the first place, his Honour referred to Mr Kalis in one paragraph of his Reasons as “the defendant”.
Secondly, his Honour, in referring to Director of Public Prosecutions (NSW) v Yeo and R v Antoriazzo, was referring to criminal cases. I have noted them above (at [283]-[284]).
Thirdly, in the former decision, there was a reference that “[n]egligent driving is established where it is proved beyond reasonable doubt that …”
These were said, cumulatively, to suggest that his Honour applied the criminal rather than the civil standard of proof.
A careful reading of his Honour’s reasons show that this is not so. In the first place, as I have noted above (at [385]), his Honour accurately identified the onus of proof clearly early in his Honour’s Reasons.
Secondly, there is no reason to suppose that the error in referring to Mr Kalis as the defendant is to be construed as a defendant to a criminal prosecution but rather a slip of the kind that can be made from time-to-time in identifying the plaintiff as the defendant. It was separated by seven pages and 28 paragraphs from the references to the criminal decisions, suggesting little connection.
The reference to the criminal cases is not quite so straightforward. There is high authority that “criminal and civil liability [for negligence] are two separate things”: Potts or Riddell v Reid [1943] AC 1 at 31. This dictum has been followed since then: R v Buttsworth [1983] 1 NSWLR 658 at 677; R v Warner (1991) 25 NSWLR 383 at 388; Maritime Authority of New South Wales v Rofe [2012] NSWSC 5; 84 NSWLR 51 at 73; [68]-[69].
These cases generally, however, deal with negligence in respect of more serious criminal offences, such as manslaughter by a negligent act or negligent driving causing death. That is not entirely true, however, for Fehlberg v Gallaher [1957] Tas SR 286, which held to the same effect, was concerned with the offence of “driving a motor vehicle on a public street negligently”.
Accordingly, it seems to me very undesirable to look at cases concerning negligence in the criminal law to describe the elements of negligence in a civil case.
In this case, however, while the references were not helpful nor appropriate, the relevant tests articulated in the quotations used phrases that had been held in other jurisdictions to be applicable to a civil proceeding. See, for example, Boyd v Fielding [2009] VSCA 237 at [87]-[88]; Eagle v Edmonds-Wilson (1971) 2 SASR 407 at 414-5; Leishman v Thomas (1957) 75 WN(NSW) 173 at 175.
It is, however, a pity that his Honour, instead of looking to criminal cases for assistance, did not start with Ch 4 of the Civil Law (Wrongs) Act which is, of course, the law in this Territory.
That chapter sets out clearly, including some words not dissimilar to those his Honour cited, the standard of care, but somewhat more comprehensively. There were some differences.
Section 42 of the Civil Law (Wrongs) Act refers to “a reasonable person in the defendant’s position” rather than “the ordinary prudent driver in the circumstances” used in Director of Public Prosecutions (NSW) v Yeo.
I do not need to decide whether there is any difference between the two phrases, but it is always preferable to refer to the applicable law.
Although I have found that his Honour did not correctly apply the test to the conduct of Ms New, I am not satisfied that it was because of a wrong test, but rather its application.
A careful inspection of his Honour’s Reasons does not show that either the wrong onus or the wrong test for negligence was applied.
This ground is not made out.
(j) His Honour erred in his finding that the Plaintiff was not a credible witness, a finding not consistent with the evidence.
It will usually be difficult for an appellate court to overturn a trial judge’s finding as to the credibility of witnesses unless the trial judge has misused the advantage of hearing and seeing the witnesses: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
Much of the challenge supporting this ground of appeal came from the way Mr Kalis mistook the location of the damage to the two vehicles, despite what appeared to be inconsistent physical evidence. Some of this came from diagrams on various forms, some of which have been reproduced above (at [57], [59]). It was said by Mr Hausfeld that they were of a kind in which “accuracy cannot be expected” or that the drawings were made by others, for example, the police officer.
That did not relieve Mr Kalis of all responsibility and, indeed, he took no steps in his evidence-in-chief to address or explain those inaccuracies; until he was
cross-examined about them. They seemed to me to be apparent inaccuracies.
The inaccuracies in the diagrams were then re-inforced by the continuing errors in his reports to various medical practitioners.
His explanation that they were an honest mistake did not have to be accepted by his Honour who heard and saw him give his evidence. Indeed, his Honour had some basis for rejecting that, given the way in which Mr Kalis gave his evidence as I have noted above (at [77]). There is also, as I have explained above (at [72]), a reasonable basis for finding that this was, in fact, an honest mistake, perpetuated by repetition. That is, however, a matter for his Honour.
Another example was that Mr Kalis explained why he had not stated to the police officer completing the AFP Crash Report that he was not injured because he wanted to see if he got “better”. That word “better” in itself necessarily implies an injury from which improvement is to be expected. Why he would not include in the report an injury that he had suffered because he might improve is difficult to understand. There are no negative consequences of including it; I can think of none and none were proferred. This does justify his Honour being at least sceptical of his evidence.
There is no doubt that some of Mr Kalis’s evidence was accurate and, indeed, his Honour appears to have accepted some. Much, however, was questionable and, indeed, some was inexplicable even to his counsel.
In my view, it was open to his Honour to find that Mr Kalis was not a reliable witness and this ground cannot be upheld.
Although not expressly addressed under this ground, it is relevant to deal here with the complaint by Mr Kalis that the learned Magistrate used the findings as to Mr Kalis’s reliability as a witness in respect of the first complaint, which his Honour dismissed on the basis that no collision had occurred, when considering his evidence as to the second collision.
No authority was cited by either party nor was it clear on what principle Mr Kalis relied to make the point.
This is not a case where a judicial officer has made an adverse finding as to the credit of a witness in another case and is prohibited on account of a reasonable apprehension of bias from hearing another case involving the persons whom the judicial officer found could not be believed. See Livesey v New South Wales Bar Association (1983) 151 CLR 288.
This is a different situation, for all the evidence has been heard together. Mr Kalis gave evidence about both claims at the one time and so there can be no pre-judgement in the relevant sense.
Further, of course, the decision to make the two claims in the one proceedings was that of the plaintiff who must have been alive to the issue.
This is, perhaps, a little like the situation in R v Lars (1994) 73 A Crim R 91, where the judge had made rulings on a voir dire which included issues of credibility.
His Honour was, importantly unlike this situation, asked to disqualify himself as a result. No such application was made here. In R v Lars, his Honour did not disqualify himself and the Court of Criminal Appeal upheld that decision, relying on the earlier decision of R v Masters (1992) 26 NSWLR 450 which dealt with similar circumstances.
This was one trial; Mr Kalis gave all his evidence at one time. In my view, his Honour was entitled to assess the evidence as a whole. That his Honour had concerns about Mr Kalis’s reliability from his evidence about the first claim was relevant. It did not require his Honour to reject his evidence about the second claim but, by the same token, it did not prevent it.
Despite the difficulties with the Reasons of his Honour, I cannot discern in them any error of the kind that this challenge might imply. His Honour set out Mr Kalis’s evidence separately for each claim and evaluated it. His Honour did not expressly rely on his earlier findings, though he may have been entitled to do so, so long as his Honour fairly assessed all the evidence. Indeed, as noted earlier, it appears that his Honour actually accepted parts of the evidence given by Mr Kalis.
Insofar as this matter is part of this ground of appeal, it does not change my view that the ground cannot be upheld.
(k) In assessing the credit of other witnesses, including Second Defendant and her passenger, Ms Gurney, His Honour failed to address admitted memory lapses and inconsistencies.
This ground was based on a submission that the learned Magistrate was credulous when it came to the evidence of Ms New and Ms Gurney and failed to take account of their memory lapses. There were also inconsistencies in their evidence and his Honour made some findings contrary to their evidence.
Of course, some memory lapse after a long delay before being required to remember may tell of honesty.
Mr Hausfeld identified eight issues that he submitted that his Honour had either ignored or inaccurately rejected in respect of Ms New’s evidence. They were, for the most part, somewhat incidental to the main issues in the proceedings.
In contrast to this, Ms New’s reports of the collision to the police, her insurers and to the insurance company investigator were very substantially consistent. This was in stark contrast to the variable versions given by Mr Kalis.
None of the matters the subject of this submission were so important that they need necessarily have required his Honour to have rejected Ms New’s evidence or found her unreliable. He could, of course, reject some part and accept the rest: Nguyen v The Queen [2012] ACTCA 24 at [44]; Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2014] ACTSC 13 at [285].(10).
The same appears to be the position with Ms Gurney. It was correct, as his Honour found, that Ms Gurney’s evidence supported Ms New, though it did not nor could not support it completely.
His Honour did not so find.
Again, it is difficult to challenge the finding of fact of a trial judge based, at least in part, on the credibility of a witness. Here, that applies to the findings of fact on which his Honour relied from the evidence of Ms New and Ms Gurney.
The matters raised by counsel do not overcome this difficulty and the ground is not made out.
(l) His Honour erred in confusing issues of primary liability of the Second Defendant with issues of possible contributory negligence of the Plaintiff.
There is no doubt that both Ms New and Mr Kalis had duties of care in the circumstances of this case. A breach of that duty of care is, of course, negligence which is a cause of action justiciable in the relevant court. The proceedings were, however, taken against Ms New, so that what was in issue was whether she was liable through the cause of action in negligence to Mr Kalis for any injury he suffered that was caused by that negligence.
In that context, the relevant duty Mr Kalis had was a duty to take reasonable care of himself in his own interest: Nance v British Columbia Electric Railway [1951] AC 601 at 611; Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570. This is referred to as contributory negligence.
Thus, the defences that Ms New may have raised against the claim included that she was not negligent, that her negligence did not to any degree cause the collision or that Mr Kalis was guilty of contributory negligence.
This ground of appeal complains that the learned Magistrate did not approach the case in this way, but confused the two issues. This was said to be clear when his Honour held (at [293]):
That the plaintiff having that in his full view still proceeded forward in circumstances that I am satisfied caused entirely the MVA, or placed the second defendant’s contributing negligence at such a low level as to extinguish his claim.
This was a somewhat confusing finding. If, as alleged, Mr Kalis “caused entirely the [collision]”, then there is no room for any negligence by Ms New at all. His Honour’s comments clearly imply that he found that she may have been negligent.
The use of the word “contributing” was unhelpful, for it may imply, as the ground of appeal suggests, that Ms New could have been guilty of contributory negligence. That was a concept simply irrelevant to these proceedings.
Contributory negligence can be so significant that it can extinguish the claim of a plaintiff: s 47 of the Civil Law (Wrongs) Act. Only a plaintiff, however, can be guilty of contributory negligence and a defendant’s negligence cannot extinguish a plaintiff’s claim at all.
It is only if one mischaracterises the proceedings so as to convert the claim against Ms New by Mr Kalis as the reverse that one could somehow give meaning to this very curious finding.
Doing the best I can to give as benign a meaning as possible to this finding, I think that his Honour was saying that Ms New’s actions were at best a very minor cause of the collision so that Mr Kalis’s failure to take care for himself was so significant that it should be set at 100 per cent and so extinguish the claim he made. Unfortunately, however, that is not what his Honour said and the words are not easily apt to that finding.
His Honour compounded the confusion by then adding:
When faced with those circumstances the plaintiff was obligated to look after himself and not act in a way that may put him at risk, Vairy v Wyong Shire Council (2005) 223 CLR 422 at [483]; [220]. This obligation also resides with the second defendant, I am however satisfied that the second defendant did all that was reasonably practicable to reduce that risk.
It is clear as, indeed, the passage from Vairy v Wyong Shire Council to which his Honour directed attention made crystal clear, the duty or obligation between a plaintiff and a defendant are relevantly quite different – there is no relevant obligation on Ms New to look after herself in the context of these proceedings. His Honour was simply in error.
Further, his Honour did not consider the content of the duty imposed on Mr Kalis. As has been pointed out by Mason J in Commissioner of Railways v Ruprecht at 571, the courts have taken into account, when considering contributory negligence, a variety of factors which have excused them for the inattention plaintiffs have given to their personal safety.
Finally, however, there is a more fundamental problem for, as noted above (at [26]), Ms New did not plead as her defence that Mr Kalis was guilty of contributory negligence. There is now considerable authority from intermediate courts of appeal that, despite legislation such as s 21 of the Civil Law (Wrongs) Act, contributory negligence must be pleaded else the trial judge has no basis to consider it. See Spotless Services Australia Ltd v Herbath [2009] VSCA 285; 26 VR 373 at 379; [23]-[24]; North Australian Aboriginal Legal Aid Service Inc v Liddle (1994) 118 FLR 109 at 114-18; Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377. See also Beer v Australand Corporation (Qld) Pty Ltd [2010] QSC 369 at [11].
That could have been dealt with in two ways at trial. It may be that if the trial is, despite the absence of a plea of contributory negligence, conducted in a way that raises the issue squarely, then the court may be entitled to reduce the damages payable by the proportion of the contributory negligence: James v McCarthy [1958] QWN 32; Spotless Services Australia Ltd v Herbott at 379; [24]
The defendant could also have sought an amendment of the pleadings and that will usually be granted, though it will be too late to do so on appeal: Christie v Bridgestone Australia Pty Ltd at 382.
Given that it was clear from these paragraphs of his Honour’s Reasons to which I have referred above (at [434], [440]), that the duty of care his Honour was considering and his approach to the issue was incorrect, I am satisfied that his Honour erred in the application of the law and this ground of the appeal must succeed.
Disposition
As noted (at [18]), the learned Magistrate did not deal with damages.
As I have found that Ms New was negligent and that the learned Magistrate made an error of law in his Reasons, the appeal must be allowed.
While his Honour did not deal with damages, there was, however, an agreement about out-of-pocket expenses and past economic loss. There was no claim for future economic loss nor for past or future gratuitous services provided (s 100 of the Civil Law (Wrongs) Act; Griffiths v Kerkemeyer (1977) 139 CLR 161).
Notwithstanding the circumstances of the collision there was, on the pleadings and in the trial, no question raised of contributory negligence and so there is no need for consideration of that issue.
There are medical reports for both parties in the Appeal Papers. While there are some differences between them, this may be able to be resolved without a hearing.
Ordinarily, the matter would be remitted to the Court to decide on damages. That requires some consideration by the parties and I shall seek appropriate submissions.
I shall make orders accordingly.
| I certify that the preceding four hundred and fifty-three [453] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 10 November 2017 |
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