Lackovic v Stevenson - [2003] WADC 133

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LACKOVIC -v- STEVENSON & ANOR [2003] WADC 133

CORAM: JENKINS DCJ

HEARD: 30 MAY 2003

DELIVERED : 9 JUNE 2003

FILE NO/S: CIV 1966 of 2002

BETWEEN: VLADIMIR LACKOVIC
Plaintiff
AND
LINDA GAYE STEVENSON
First Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Defendant

Catchwords:

Negligence - Road accident case - Liability - Proof of involvement of unidentified vehicle - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 7(3)

Result:

Plaintiff's claim against second defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr T N Cullity
First Defendant             :     Mr B C Sierakowski
Second Defendant         :     Mr B C Sierakowski

Solicitors:

Plaintiff:     Kakulas & Kakulas
First Defendant             :     Brian C Sierakowski
Second Defendant         :     Brian C Sierakowski

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

JENKINS DCJ: The plaintiff claims damages for personal injuries suffered in a motor vehicle accident on 2 May 1999. The accident occurred on the verge Marmion Avenue Duncraig, when the vehicle driven by the plaintiff collided with a light pole. The plaintiff sues the Insurance Commission of Western Australia, the second defendant, pursuant to s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943. That is, the plaintiff pleads that the accident was due to the negligent driving of another motor vehicle but the identity of that vehicle could not be ascertained. The trial was limited to the issue of liability of the second defendant only.

Pleadings

The plaintiff's statement of claim alleges that on 2 May 1999 the plaintiff was driving a Mitsubishi Express Van registration number 9DB 320 in a northerly direction in Marmion Avenue Duncraig. It is alleged that at the same time an unidentified motor vehicle travelling in a northerly direction in Marmion Avenue cut across in front of the plaintiff's vehicle causing the plaintiff to break and swerve to the left to avoid colliding with the other vehicle. The plaintiff is alleged to have lost control of his vehicle, it left the road and hit a light pole. It is alleged that the unidentified driver was negligent in that he or she drove at an excessive speed, failed to keep any or any sufficient lookout, changed lanes when it was unsafe to do so and failed to signal any intention to change lanes.
The second defendant's defence denies that an unidentified driver was driving the unidentified motor vehicle as alleged in the statement of claim and says that the plaintiff lost control of his motor vehicle and was the sole cause of the collision. The defence denies that the collision occurred as a result of the negligence of the unidentified driver and claims that the plaintiff was negligent.
The claim of negligence on the part of the plaintiff is not a claim of contributory negligence and I do not see that it adds anything to the denials that I have already referred to.
It is not an issue between the parties that if an unidentified driver drove in the manner alleged by the plaintiff such manner driving caused bodily injury and the plaintiff would otherwise fall within the provisions of s 7(3) of the Act and consequently the plaintiff would be entitled to judgment against the second defendant.
The issue between the parties is whether the plaintiff has proved on the balance of probabilities that there was an unidentified party driving an unidentified vehicle whose driving caused the accident as alleged by the plaintiff.

Undisputed facts

It is common between the parties that as of 2 May 1999 the plaintiff was 61 years old and living with his wife, Vera, in Alvaston Drive, Carine. Through their company Piper Enterprises Pty Ltd they operated a delicatessen ("the deli") in Padbury. The plaintiff was born in Montenegro in the former Yugoslavia and emigrated to Australia in 1962.
The deli had a monitored alarm and it was not unusual for the plaintiff to receive calls in the middle of the night from the security company which monitored the alarm to advise him that the alarm had gone off. On such occasions the plaintiff would get up and drive to the deli to ensure that the premises were secure. At approximately 4 am on the morning of 2 May 1999 the plaintiff was awoken from his sleep when such an event occurred. After speaking on the telephone he got dressed and splashed water on his face and commenced to drive to the deli. The plaintiff said that he went the route he always took going through suburban streets onto Warwick Road and then turned right onto Marmion Avenue. The defendant questioned why he would take this route but I do not see that anything turns upon it. It had been raining throughout the evening.
As the plaintiff drove in a northerly direction along Marmion Avenue and as he was approaching the T-junction of Marri Road, with Marmion Avenue being the through road, his vehicle left the carriage way, travelled across a 2.4 metre bitumen verge and continued in a north-westerly direction along the left hand grassed verge until it collided with a light pole 2.9 metres in from the edge of the bitumen verge. It travelled at least 11.4 metres from where it left the bitumen verge to the light pole. The force of the collision snapped the pole at its base and brought it and power lines down. The plaintiff's vehicle ended up pointing in a southerly direction just to the north of the light pole.
Marmion Avenue in this vicinity is a divided carriageway. The northbound carriageway is a dual carriageway 7.6 metres wide. The edge of the left hand lane is delineated by a solid white line. There is a dotted white line between the two lanes of the north bound carriageway. In addition to the dual carriageway there is also a right-hand turning lane for vehicles travelling from Marmion Avenue into Marri Road. The road is relatively flat, there is a gentle left-hand curve and the daytime visibility is excellent. The grassed verge consists of a number of large shrubs and trees. They commence shortly onto the grassed area. The shrubs and trees do not obscure a driver's view of the road. The bitumen is in good condition. There is nothing in the normal, dry condition of the road that would cause the plaintiff's accident.
The plaintiff was injured in the accident and remained in his vehicle. Soon after the accident a neighbour, Craig Barrel who lived on the southern corner of Marri Road and Marmion Avenue arrived at the accident scene and assisted the plaintiff until police and ambulance arrived. Another neighbour Glen Rogers arrived some seven or eight minutes later and also assisted.
The police and ambulance arrived approximately 10 minutes after the accident and the plaintiff was taken to Joondalup Health Campus and treated for his injuries which are as outlined in the statement of claim. These included aggravation of pre-existing problems including neck injury, shoulder injury, trauma to the chest, lumbar spine injury, rib fractures, knee injuries, fractured right clavicle, collapsed lungs and myocardial contusions. He was however conscious at the scene and for some time after arrival at Joondalup Health Campus.
Meanwhile when Mrs Lackovic had not heard from her husband she telephoned the Warwick Police Station. Warwick Police Station called her back shortly afterwards and advised her that her husband had been involved in a motor vehicle accident and was at Joondalup Health Campus. Mrs Lackovic travelled to the hospital and saw her husband there. Whilst at the hospital and prior to him lapsing into a coma he said words to the effect "I was cut off". Mrs Lackovic asked him further questions for example who cut him off and he said that he didn't know. When speaking he motioned to his right. She said that she didn't assume from this that whoever had cut him off had come out of Marri Road.
Somebody contacted a friend of the plaintiff, Thomislav Saicic, and Mr Saicic also went to the hospital and spoke to the plaintiff. The plaintiff was conscious and the plaintiff told Mr Saicic that someone had cut him off on Marmion Avenue just after Warwick Road. Mr Saicic told the plaintiff not to worry and not to talk about it and he would talk to him later. Mrs Lackovic wasn't there at the time of this conversation.
Mr Saicic is a close friend of the plaintiff and he has known him since 1971 when he emigrated to Australia. He is an owner and driver of a taxi.
At the time Mr Saicic saw the plaintiff he was in intensive care. Some time after arrival at Joondalup Health Campus the plaintiff's condition deteriorated and the doctors induced a coma and the plaintiff was transferred to Sir Charles Gairdner Hospital. The plaintiff remained in Sir Charles Gairdner Hospital for some time.
A Constable Killalea attended at the accident scene. He completed an "Attending Officer's Report of Road Traffic Crash" which includes the details of only the plaintiff and his vehicle. There is nothing in the report to indicate that a second vehicle or driver was involved. Rather Constable Killalea wrote "driver has lost control of vehicle and driven onto left hand verge and then collided with SEC power pole, snapping the SEC pole off at ground level."
However by or on the following day the plaintiff's family had contacted the police and advised them that a second vehicle may have been involved in the accident. The police examined the plaintiff's motor vehicle to ascertain whether there was any evidence that another vehicle was involved. The vehicle examiner concluded that the plaintiff's vehicle had nil defects and there was no evidence of impact with another vehicle. I have seen photographs of the vehicle and it has sustained an impact to the front drivers side door. This impact appears to be consistent with a collision with a light pole. It has also sustained damage to its rear. This damage appears to be consistent with damage caused by colliding with large shrubs and trees on the verge. Police also made a media appeal for witnesses to come forward but nobody did.
On 20 June 1999 the plaintiff was interviewed by the police and made a statement which said, in part, "I can't remember leaving or anything before this day, the only thing I can remember is waking up in Sir Charles Gairdner Hospital about a week later. I don't remember nothing about any crash at all."
On 29 June 1999 the plaintiff signed a motor vehicle accident claim report for his insurers SGU Insurance Limited. The claim report was completed by the plaintiff's insurance agent, Bryan Moore, at one of the plaintiff's premises. The plaintiff provided him with information and Mr Moore then completed the form and the plaintiff signed it. In the section headed "How did the accident happen?" The following words are written:
"tp(?) came out of side street (?) forcing me to avoid collision and struck lamp post."
"tp" stands for third party.
The plaintiff, in his evidence, said that at this time he had no recollection of the accident and that what he told Mr Moore was based on what people had told him he had said. Mr Moore said that the plaintiff was unsure as to what happened but what he wrote down was what the plaintiff told him he, the plaintiff, could remember of the accident.
On 10 September 1999 the plaintiff's solicitors gave notice by letter of this claim to the second defendant. The allegation in the letter is that the other car "passed" the plaintiff and "suddenly cut across" in front of the plaintiff's car.
On 2 December 1999 the plaintiff made a statutory declaration before an insurance investigator, Anthony Napier, and in the presence of his solicitor. In the statutory declaration he recalls all the events of the evening from the time he was woken by a telephone call from his shop security firm saying that the deli's alarm had gone off to when he arrived at Joondalup Health Campus. The statutory declaration says that as the plaintiff was driving on Marmion Avenue in the left hand lane, at about 75 kilometres per hour, he checked his rear vision mirrors and did not remember seeing lights behind him. A car then was beside him to his right and it was half way into his lane and cutting into his lane in front of him. He turned his head and saw a male person with long hair in the left front seat. He had both hands up and looked like he was throwing something towards the plaintiff. His side window was open and his head was half out the window and his hands were half out as well. The plaintiff's reaction was to put on his foot brake and to steer to the left to avoid the other car. He then lost control of the van and he did not remember the van leaving the bitumen. He remembered a bang and call out for help.

Disputed evidence

The plaintiff

The plaintiff said that he had a current memory of the accident. His memory was that he was driving north along Marmion Avenue in the left hand lane of the carriageway when a creamy coloured small sedan drew along side him and moved into his lane. He looked through his closed window and saw somebody sitting in the front passenger seat of the sedan with their hands up in front their face as if to throw something at him. He did not see what they had in their hands or if they had anything in their hands. The sedan continued to move into his lane and in order to avoid an accident he drove off the road onto the verge and then collided with the light pole.
He said that when he woke up in hospital and up to one month later he had no recollection of the accident or events subsequent to it. At the time he spoke to police and made a statement to them he had no recollection of how the accident had occurred. Similarly when he spoke to Mr Moore and Mr Moore filled out the claim report he had no recollection of the accident and merely told Mr Moore what people had said he had said about the accident. He said that he told Mr Moore "they told me that I say the car cut me off." I find that the plaintiff told Moore that other people had told him that he had said that another car cut him off. The other people presumably being his wife and Mr Saicic referring to what the plaintiff had said at Joondalup Health Campus. The inference I draw from this evidence is that, if it is true, Mr Moore should have been aware that the plaintiff was merely telling him what he had said on a previous occasion, not what he could then remember. This is to be contrasted with Mr Moore's view. Mr Moore's view is that the plaintiff was recalling what he could remember of the accident.
The plaintiff said that he thought it was around August that his memory started returning and it was then that he rang the police and told them that he had a recollection of what happened. Later he made the statutory declaration.
He said that at the time of the accident it was rainy and dark. He said that he was not speeding as he had no reason to hurry to get to the shop before the police did.
He said that he had been driving since 1963 and had extensive experience driving large truck as well as motor vehicles.
The plaintiff said that prior to the sedan pulling along side of him he did not see any lights or anything in his rear view mirrors. He said that he did not think it was the case that the vehicle came out of Marri Road and he said that the accident in fact occurred south of the intersection of Marri Road. He did not know whether the sedan had touched his vehicle but he said that it did not touch his vehicle before he collided with the light pole.
He denied reconstructing his memory and said that he only had a picture of a car moving in his direction.
He said that it happened very quickly. He denied being tired. He said he did not recollect any water on that section of road.
He said that sometime in August when he stopped taking a lot of medication and started getting more sleep his memory came back to him. However he still does not have a clear recollection of how he felt immediately after the accident or what happened at the accident scene.
He acknowledged being advised only the day before his evidence that the claim report had been discovered and he acknowledged having had the opportunity to read that the previous evening prior to his evidence.

Plaintiff's wife

Apart from the evidence that she gave relating to the facts in common, she said that when she spoke to the plaintiff at the hospital he was quite alert. For example, he knew exactly how much money he had on him which, apparently, was a lot of money and he knew where he was and what had happened.

Mr Saicic

He said that when the plaintiff spoke to him in hospital he was only there for two to three minutes at the most and during that time Mrs Lackovic did not come in.

Constable Killalea

Said that the weather was wet, windy and rainy. The impact point appeared to be on the driver's side door of the van. He agreed that this was consistent with the plaintiff van travelling to the left of the light pole colliding with the light pole on the driver's side, then rotating and ending up pointing south at a point just north of the light pole. He said that at the time he investigated he thought there was excessive speed because of the force required to snap the light pole. He did not recall the rear impact damage.

Glen Rogers

Mr Rogers was the second neighbour on the scene. After the noise and a flash of the accident awakened him he got dressed and went outside to investigate. He said that the plaintiff's vehicle was hidden behind the bushes on the verge. He said that he asked the plaintiff questions about his health and there was no direct responses, only groaning. He said there was no intelligent conversation with the plaintiff.
He did not know where the back the van was in relation to the bushes but the van itself was north of the pole and facing south.

Bryan Moore

Mr Moore was the plaintiff's insurance agent who completed the claim report on the plaintiff's behalf. He said that prior to attending at the plaintiff's home he knew nothing of the circumstances of the accident. The plaintiff provided him with all the information that he recorded in the claim report. He said that he put the question marks into the descriptions of how the accident happened because the plaintiff was unsure as to what had happened. However, he did not believe that the plaintiff was unsure about the third party involvement but that he was unsure about the exact circumstances of the accident. He said that as a consequence of what the plaintiff had told him it was his understanding that the other vehicle involved in the accident had come from Marri Road. He said that the plaintiff had not told him anything about what the passengers of the other car had done. He said that the plaintiff told him what he, the plaintiff, could remember of the accident. The plaintiff did not tell him that he was reciting information that others had told him he had said previously but of which he had no memory.

Craig William Barrell

Mr Barrell was the first neighbour on the scene. At approximately 4.15am on 2 May 1999 he was awake having been up to check on his ailing mother. He was dressed and in his bedroom at the back of the house which was the part of the house which was closest to Marmion Avenue. It was a stormy and wet night. It was raining at the time. He heard a screech of brakes, a bang and then a second loud thud. He assumed that it was a car accident and the noise was definitely from Marmion Avenue and not from Marri Road. He said that his bedroom window was open at the time.
He went on to his back patio and looked over some bushes and his back fence toward Marmion Avenue.. He could see the plaintiff's van on the other side of Marmion Avenue. He immediately jumped the back fence and ran across the road. From the time he heard the thud it was only 5 seconds till he was out on his patio and another 30 seconds till he was at the accident scene. During this period he did not see any other vehicle although he acknowledged that there would have been time for another vehicle to drive away. However, he said that from the time he heard the noises of the accident he heard no other noises consistent with another vehicle driving away. He said that his property was adjacent to Marmion Avenue and at night they could hear what was travelling up and down Marri Road and Marmion Avenue. He said that apart from the noises of the crash which did not include any metallic noise he heard no other sound and no other vehicle. When acknowledging that another vehicle could have driven off he said that he thought that he would have heard it drive off but after the sound of the accident it was very quiet. At the time it was drizzling.

Mr Barrell is a schoolteacher. He has spent 17 years in the army reserve and is a qualified army medic and rifleman.
Mr Barrell said that when he got to the accident scene he saw the plaintiff who had blood on his face. Whenever he moved the plaintiff groaned and clutched is abdomen. The plaintiff was saying that "I must get to the shop". He asked Mr Barrell to get somebody to ring his family and he repeated that they must get to the shop.
Another car pulled up after a couple of minutes and the driver of that vehicle rang for the ambulance and police.
Several times the plaintiff tried to start the engine of the car as if he was about to drive off and eventually Mr Barrell took the keys out of the ignition. The plaintiff did not mention to him any other vehicle. Mr Barrell told him to relax and not to move. The police and ambulance arrived within 10 minutes.
Mr Barrell inspected the vehicle at the scene and noticed extensive damage on the right drivers side and rear of the vehicle. He said that the back of the vehicle was in amongst the trees and bushes. There was a broken tree which he assumed had been knocked over by the vehicle and the vehicle was dented in where the tree was.
He was first asked to recall the events of that evening several months later. He could not be sure when it was and it could have been in either September or December 1999.

Findings with respect to the plaintiff's credibility

The truthfulness of the account given by the plaintiff in evidence must be tested against all the surrounding circumstances. These include the lack of evidence of any other vehicle being involved in the motor vehicle accident, the plaintiff's prior inconsistent statements and the seriousness of the plaintiff's injuries.
With respect to the first issue, as to lack of evidence of any other vehicle being involved, I accept the statement in the police file that the examination of the vehicle did not find any evidence to indicate that another vehicle had impacted the plaintiff's vehicle. Further there is no evidence that there was anything found at the scene to indicate the involvement of another vehicle. Also Mr Barrell said that apart from the sound of the accident itself, he did not hear any other sounds consistent with the presence of another vehicle. Such sounds one may expect to hear would be the other vehicle braking or accelerating or driving off at some speed.
Consequently, on the plaintiff's case, I am asked to accept that another vehicle drove alongside the plaintiff and deliberately forced him off the road at a speed approximating 80 kilometres per hour and then left the scene without leaving any evidence or without being heard by Mr Barrell.
I accept Mr Barrell's evidence as highly credible. He is a person of apparent good character, he was alert and awake at the relevant time and in a position to hear the sounds before and after the accident.
I find it highly unlikely that the accident could have occurred as the plaintiff stated in evidence without Mr Barrell either seeing or hearing the vehicle and without the other vehicle leaving any evidence at the scene or on the plaintiff's vehicle.
With respect to the second issue, being the plaintiff's prior inconsistent statements, it is not in dispute that on 20 June 1999, some six weeks after the accident, the plaintiff made a statement to the police saying that he could not remember anything of the accident and all he could remember was waking up in Sir Charles Gairdner Hospital a week later.
Some nine days later after this the plaintiff told Mr Moore that he could remember a third party coming out of a side street and forcing him to avoid a collision and striking the lamp post. I find that the plaintiff told Mr Moore that this was his recollection. However, that account is clearly inconsistent with what the plaintiff told the police some nine days earlier and inconsistent with what he said in his evidence.
The plaintiff concedes the inconsistencies between those two statements. To justify these inconsistencies he says that is because he was merely relating to Mr Moore what other people had told him he had said. However, I am satisfied that the plaintiff did not tell Mr Moore that it was other people's account of what he had told him. Rather he led Mr Moore to believe that it was his present recollection. Further Mrs Lackovic has stated on the basis of what she was told by the plaintiff at the hospital she did not conclude that the other vehicle had come out of the side street. Thus the plaintiff's evidence that this was what other people had told him he had said does not appear to be credible.
Further the plaintiff's explanation that over the next two months his memory recovered such that in December he was able to describe in detail the accident, but not what occurred immediately after it, does not accord with my experience of life or my common sense. I received no expert evidence explaining how the plaintiff's injuries or the experience of the accident could cause him to lose his memory and then regain only a part of it in such a manner and time frame.
Further, I do not accept the plaintiff's recovered memory as being accurate and reliable. It would seem to me that even if I accept that it was possible for him to regain his memory in this way, I have considerable doubts about its accuracy and reliability.
In these circumstances I am not persuaded on the balance of probability of the truth of the plaintiff's account.
The plaintiff says that I should be willing to rely on this memory as it is consistent with what the plaintiff told his wife and Mr Saicic on the morning after the accident. That is what he told them rebuts any suggestion of recent invention.
What the plaintiff told his wife and Mr Saicic was vague and the statements were made when he was in the emergency department or intensive care and his condition was deteriorating. The statements were not made to Mr Barrell or Mr Rogers and, apparently, neither to the police as there is no record of the police having heard them. I am not prepared to rely upon such comments as supporting the plaintiff's creditability to a sufficient extent. This is especially so in the light of the other inconsistent accounts that the plaintiff has given of the accident, his injuries and his acknowledgement that when he woke up in hospital he had no recollection of what had happened previously including what he had said to his wife or Mr Saicic.
There are also inconsistent accounts of the ability of the plaintiff to communicate in a rational manner after the accident. Mr Rogers said he received no intelligible answer from the plaintiff. Mr Barrell said the plaintiff was behaving slightly irrationally. The plaintiff's wife said, on the other hand, that a short time later he was alert, intelligible and orientated. This was apparently shortly before his condition deteriorated to such an extent that the doctors induced a coma. I consequently do not accept Mrs Lackovic's evidence in this respect.
There are such inconsistencies in the evidence before me that I am simply not prepared, as I have said, to find that the plaintiffs credibility is bolstered to such an extent by the statements he made to his wife and Mr Saicic that I can rely upon his sworn evidence. This is particularly so in the light of the findings I have made with respect with the absence of any evidence at the scene of another vehicle being involved in the accident.
I also find that it was a dark, windy and rainy night and at the time the road was wet. The plaintiff had been awoken at 4 am in the morning to attend his shop. Despite his denials I find that he was in a hurry to attend the deli and get home again. It was only 10 to 20 minutes after he was woken that the accident occurred on a straight stretch of road. It is unnecessary for me to make any findings as to how the accident occurred and I will not do so. However, I note that there are other reasonable explanations for the accident, such as the plaintiff fell asleep or lost control of his vehicle on the wet road, such that the involvement of another vehicle is unnecessary to explain the accident.

Conclusions

I am not satisfied that on the balance of probabilities that the plaintiff has proved that an unidentified vehicle driven by an unidentified person was involved in the accident on 2 May 1999. Consequently his claim against the second defendant is dismissed.