Naaman v Pangilinan

[1999] QCA 394

IN THE COURT OF APPEAL	99.394
SUPREME COURT OF QUEENSLAND

Appeal No 9837 of 1998

Brisbane

[Naaman v Pangilinan]

BETWEEN:

AHAMED NAAMAN

(Defendant) Appellant

AND:

SEVERO PANGILINAN

(Plaintiff)	Respondent
McMurdo P Pincus JA Demack J

Judgment delivered 21 September 1999.

Separate reasons for judgment of each member of the Court; Pincus JA dissenting.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
APPEAL - INTERFERENCE WITH JUDGES FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED UPON CREDIBILITY OF WITNESSES - respondent injured while changing tyre by roadside - whether respondent in fact suffered injury - whether judge had too fragile a base to support findings of fact - whether respondent’s evidence was glaringly improbable or inconsistent with the facts incontrovertibly established by the evidence - whether respondent’s conflicting accounts rendered him unreliable - whether respondent’s language difficulties, shock and suddenness of accident accounted for inconsistencies
SRA (NSW) v Earthline Constructions (1999) 73 ALJR 306; [1999] HCA 3, applied De Vries v Australian National Railways Commission (1992-1993) 177 CLR 472, applied
Counsel:	Mr M O’Sullivan for the appellant Mr R Traves for the respondent
Solicitors:	Hunt and Hunt for the appellant Baker Johnson for the respondent
Hearing date:	11 June 1999

1. McMURDO P: The respondent/plaintiff sued the appellant/defendant for damages for

   personal injuries suffered in a motor vehicle collision which occurred at about 6 am on 5 March

   1994 at Paradise Road, Slacks Creek. The learned District Court judge gave judgment for the

   respondent against the appellant. This appeal relates only to his Honour's finding as to liability.

2. The respondent's case was that he was travelling east along Paradise Road in his Toyota

   Hiace van when he realised he had a flat tyre. He pulled over and parked next to and parallel to

   the kerb, in order to change it. There were two lanes travelling east along Paradise Road. He

   opened the rear van door to remove the spare tyre. The appellant's car hit his van; the door of the

   van came downwards, hit him and threw him onto the ground on the other side of the footpath.

3. He claims in this appeal that on the evidence the learned judge should have concluded that

   the respondent was not injured in the accident and his action should therefore have failed; the

   learned trial judge's findings, that the respondent was squatting at or near the rear door of his van

   which was open and that the impact of the appellant's vehicle brought the door down suddenly,

   striking the respondent and throwing him from the roadway on to the footpath, were wrong.

4. The appellant's case at trial was that the respondent was not near the area of the van

   involved in the collision at the time of the accident.

5. A witness, Mrs Maloney heard the collision and stopped to render assistance. She drove

   past the van in an easterly direction immediately before the collision. She did not see the respondent

   at the back of the van and thought that the van door was closed. The sun was in her eyes and she

   was concentrating on moving into the right-hand lane so as not to hit the van. In these

   circumstances, it was reasonable to conclude that she may not have noticed the presence of the

   respondent or the position of the van door.

6. The appellant also had the sun in his eyes and did not see the van until just before the

   collision; nor did he see the respondent in the vicinity of the van immediately before or after the

   collision. As he did not see the van in time to avoid the collision, this is unremarkable and was no

   bar to the acceptance of the respondent's version. After the collision, he was understandably

   concerned about his wife's injuries and the safety of his child and was suffering from shock. His

   Honour was entitled to conclude as he did that neither the appellant's nor Mrs Maloney's

   observations were reliable.

7. The appellant firstly argues that the damage to the respondent's van does not support his

   Honour's findings. This submission relies upon photographs which were tendered at the trial; the

   District Court file notes that the photos were returned to police; the photographs and negatives have

   been misplaced. This Court has to rely on photocopies which are not as clear as they could be.

   These demonstrate very substantial damage to the appellant's vehicle, especially on the front

   passenger side and less substantial damage to the rear driver side of the respondent's van which also

   had a flat tyre on the front passenger side. The photocopies show the van door was open after the accident, with only minor damage, the bottom right hand corner of the door bending slightly inwards.

   His Honour noted that this at first appears consistent with the door having been closed at the time

   of the collision, since most of the damage was to the bottom right hand corner of the van; but as the

   door was partially open after the collision, it may well have been wide open at the time of the

   collision and come down part way after being struck or bent by some part of the appellant's vehicle.

   His Honour's findings of secondary damage to the open van door are not inconsistent with the

   photographs. Indeed, had the van door been closed at the time of the collision it is likely to have

   been more damaged than it was.

8. The appellant's second submission is that the learned judge's findings are unreasonable

   because the respondent was objectively unscathed in the accident, this being inconsistent with the

   finding that he was hit by the van door and thrown onto the ground beyond the footpath.

9. Extensive damage to the appellant's sedan demonstrates that considerable force was

   involved in the collision. There was no evidence of any bruising or other objective injuries to the

   respondent from ambulance officers, the hospital or treating doctors. The respondent did, however,

   complain immediately of pain to his lower back and coccyx. The medical evidence at trial does not

   give support to the appellant's submission. Orthopaedic surgeon, Dr Pentis, thought that on the

   respondent's account, bruising would be probable, although it would depend on how he fell and

   what he hit. Dr Tomlinson, a neurosurgeon, did not find the lack of lacerations, bruises or broken

   bones exceptional in these circumstances where the respondent reported immediate pain to the

   lumbar spine.

10. Mrs Pangilinan, who was married to the respondent at the time but has since been divorced from him, came to his assistance at the accident scene. The respondent told her that he could not move or bend his body and was holding his back. When he returned from hospital about lunchtime

    he rested on the bed and complained about a sore back which she massaged. The next day his

    back looked swollen.

11. At the hospital blood was detected in his urine in a test which is about 84 per cent accurate;

    a more precise analysis two days later showed no blood. Such a result was consistent with either

    an approximate 16 per cent chance of no injury and an inaccurate test or a minor transient injury

    to the kidney. Mathematically, this evidence tended to support the respondent.

12. The absence of objective injury to the respondent immediately after the accident is not

    inconsistent with his version of events; the evidence of Mrs Pangilinan, his consistent complaints of

    back pain and the blood urine test support his evidence.

13. The appellant's third complaint is that his Honour erred in accepting the evidence of the

    respondent because the respondent had given a number of conflicting versions about the

    circumstances of the accident.

14. The learned trial judge found that the respondent was a poor historian and had been

    untruthful to psychiatrist Dr Nothling about his intake of medication; the respondent's claims to Dr

    Nothling were disproved by a urine test. His Honour noted that the respondent, whose English was

    poor, may not have fully understood the questions asked by Dr Nothling or answered without caring

    because of his many problems; he appeared an extremely depressed and unhappy man who, after

    the accident, had separated from his wife of 30 years and whose son had been charged with

    murder, causing the respondent to borrow heavily for legal fees. His Honour concluded that

    untruthfulness in that context did not cast doubt upon all his evidence.

15. The respondent gave evidence that "... he had been thrown out from [the] door from the

    back of the van across the footpath to the ground up to the footpath." He indicated to an

    ambulance officer that he was standing at the left hand rear passenger side of the vehicle and not

    at the very rear of the vehicle at the time of the accident.

16. Hospital records note the respondent was "thrown against car" and "was changing tyre on

    vehicle when it was hit up the rear by another vehicle".

17. The respondent told police some weeks later that he stopped the van to change the

    passenger's side front tyre, put on the hazard lights, went to the back of the van, lifted up the back

    door and bent down to undo the spare tyre, the collision occurred, forcing the van onto the

    footpath, hitting him and pushing him up onto the footpath.

18. On 7 March 1994, the respondent's general practitioner noted that the respondent was

    "fixing flat tyre on 5 March 1994 at 6 am when was hit by another car. Was knocked down."

19. A report from Logan Hospital of 24 April 1995 notes:

"He stated that he had been changing a tyre on his vehicle when it was struck by
another car and he was thrown up against it."

1. The respondent told Dr Tomlinson that after impact "he was thrown across the footpath and

   into the front yard of the house, in front of which he was parked. He said he believes he was

   concussed by the accident. Mr Pangilinan said he can remember lying on the ground face down and

   tried to rise to his feet. He said when he did this he experienced severe back pain and he believes

   he passed out. He said he subsequently tried to stand up but he could only achieve this with the

   help of bystanders."

21 In answers to a number of interrogatories, the respondent said:
"... I was standing near my motor vehicle at the time of the accident and I was
standing at the back of the van getting a spare tyre out from the spare tyre storage
space under the floor. ...
I was knocked unconscious but I believe that I was struck by the rear door of my
motor vehicle which hit me on my back and threw me violently to the ground. ...
I believe that I did strike my head on the ground and ... I believe that I was also
struck on the head by the door of my van. ...
I believe I was unconscious for a short time ... a minute or two."

1. A letter from the respondent's solicitors to the appellant's solicitors of 11 September 1998

   stated:

   "... Mr Pangilinan was scooped up and flicked by the rear door off the roadway across the footpath and landed approximately six feet inside the yard of a private home."

   Remembering the respondent's language difficulties and the shock of the collision when he had his

   back to the appellant's sedan, the versions have considerable consistency.

2. The learned trial judge correctly noted independent evidence supporting the respondent's

   version: the left front tyre of the van was flat, there was a wheel spanner which the respondent said

   he was using to undo wheel bolts lying on the road surface in a position consistent with his version,

   and the van door was open.

3. His Honour understandably concluded that the various inconsistencies in the versions given

   by the respondent were explicable; the respondent would not know precisely what had occurred

   in the incident, he was not fluent in English and would have been dazed and disoriented after the

   collision.

4. His Honour correctly isolated the facts in dispute and made findings which were reasonably

   open on the evidence. This was not a case where a primary judge had too fragile a base to support

   his findings, nor one where the appellant's case has not been determined upon a consideration of

   the real strength of the body of evidence presented at trial: see SRA (NSW) v Earthline Constructions;[1] nor was the respondent's evidence glaringly improbable or inconsistent with facts

   incontrovertibly established by the evidence: see De Vries v Australian National Railways

   Commission;[2] his Honour's fact finding was neither the subject of an error of principle or mistake

   or misapprehension of fact nor was the overall evidence such that it was not reasonably open on

   the evidence: see De Vries.[3]

   [1] (1999) 73 ALJR 306; [1999] HCA 3, Gaudron, Gummow and Hayne JJ at 63-64

   [2] (1992-1993) 177 CLR 472, Brennan, Gaudron and McHugh at 479

   [3] Ibid, Deane and Dawson JJ at 483

5. The appellant has failed to demonstrate any proper reason to interfere with his Honour's

   findings as to liability. I would dismiss the appeal.

6. PINCUS JA: This is a defendant's appeal in a personal injury case, the circumstances

   being set out in the reasons of the President. The case is one I have found difficult; I have in the

   end concluded that the respondent should not have been found to have suffered an injury in the way

   alleged, or anything like it; so, in my opinion, the action should have been dismissed.

7. It is common ground that the respondent was not hit, or injured in any direct way, by the

   appellant's vehicle which collided with the respondent's van. The respondent's case was that he

   was, at the time of the collision between the two vehicles, crouched at the rear of his van, the rear

   door of which was open; he said the appellant's vehicle narrowly missed him but that he was injured

   when the rear door came down and struck him after the vehicle collision; he claimed to have been

   tossed onto the footpath. The appellant's primary case was that there was no injury to the respondent at all and that he invented the story he gave about the way in which his alleged injury

   was sustained.

8. Consideration of the matter at the appellate level is complicated by the fact that the

   respondent's command of English, it is said, is not good. It seems evident, however, that although

   his mode of speech is not that of a person whose native language is English, he is able to express

   himself well enough to convey his meaning; and there is nothing in the record to indicate that he had

   any particular difficulty in comprehending what was put to him. I give examples:

   "What sort of things couldn't you do after the accident that you could do before the accident as far as your work is concerned?-- I can do the skirting, no problem, bend and doing it in one position but at this present time, I cannot do that". [12]

   "Again did you physically do all the building work on that construction?-- No, sir.

   Who actually did the building work?-- Subcontractors.

   How much work could you do in respect of -----?-- I can do - still doing some priming, that work is not - is stationary, no lifting, no bending too much". [13]

   "So, you do travel regularly over to the Philippines and stay there for periods?-- When after the accident my life is disintegrated and I went there to see the family because I cannot - no home here". [49]

   "Well, when did you first start getting payments from the Department of Social Security, can you tell me?-- I cannot recall the date but I did get some benefit from Social Security". [49]

   "You have told us about your problems in your marriage. Can you tell the Court when it was, if ever, that you and your wife separated?-- When I got accident, she look after me for few months and then I'm become irritated all the time and we fight, sort of things, we don't agree any more, but we were married for 32 years. I got four children grown up. We send them to university in here. One is finished university here. The other one is finishing journalism next year". [63]

9. There was objective evidence independent of anything the respondent said, on which to base a finding that, assuming the respondent was struck as a result of the collision, that caused an injury. Dr E G Holmes, a urologist, said in effect that a test showed that there was probably,

   although not certainly, blood in the respondent's urine when he was taken to hospital after the

   accident, and that although there were other possible causes the probable cause of that was some

   injury to a kidney. Dr Holmes was of opinion that since the urine was found, on a more accurate

   test, to be blood free within 48 hours any injury to the kidney must have been of a minor nature.

10. Apart from that blood-test evidence, there was no independent evidence to indicate that

    the respondent suffered injury as a result of the collision. No visible injury was found by the

    ambulance officer who came to the scene; she examined the respondent with his shirt off, but

    recorded no visible abnormality. When, shortly after that, the respondent was examined at the

    hospital by a doctor, apparently having removed his clothing, that examination produced no record

    of any visible injury. Then, two days later, a general practitioner saw the respondent at her surgery.

    She made no record of any visible injury. It would be surprising if a blow from the van door violent

    enough to toss the respondent's body onto the footpath, or even further, could be sustained without

    leaving some mark, noticeable by an experienced examiner; it would also be surprising if there were

    such a visible sign of the injury as one would expect to be present and all the three people

    mentioned either saw no sign of injury or, seeing such a sign, failed to record it. I note that

    according to the respondent's wife (since divorced from him), and to the appellant, and to the

    ambulance report, the respondent was either standing or walking about shortly after the accident.

    His case was that he was on the footpath, not because he was able to stand and walk, but because

    the van door threw him there; he seemed to suggest he was prone, unable to rise, after being thrown by the closing van door. In these circumstances it became, in my view, important to

    determine whether the evidence about how the alleged injury occurred could be accepted.

11. The judge did not make a finding as to how the respondent suffered his alleged injury. As

    is explained in the reasons of the President, there have been various accounts of it given by the

    respondent. Those which appear to me entitled to be accorded particular significance are those

    given on his instructions by his solicitors; it seems unrealistic to assume that they entirely

    misunderstood those instructions. In the plaint, rather unusually, the collision between the two

    vehicles is pleaded, negligence is alleged and it is then said that "as a consequence of the

    Defendant's negligence the Plaintiff suffered personal injuries"; it is not stated what connection there

    was between the vehicle collision and the injuries - i.e. whether the respondent was an occupant of

    the vehicle and if he was not, how the collision injured him. The allegation about that aspect was

    first put forward much later, in answer number 26 to interrogatories delivered by the appellant; the

    respondent said that he was knocked unconscious but "I believe that I was struck by the rear door

    of my motor vehicle which hit me on the back and threw me violently to the ground". Then, in a

    letter from the respondent's solicitors dated 11 September 1998, they said that the rear door on the

    respondent's vehicle was initially forced down towards the ground just behind where the respondent

    was kneeling. The letter said:

    "The van was then forced by [the appellant's] vehicle forward and upward and [the respondent] was scooped up and flicked by the rear door off the roadway across the footpath and landed approximately 6 feet inside the yard of a private home".

1. In his evidence at the trial the respondent said that after the vehicle struck his van:

"I had been thrown out from my door from the back of the van across the footpath
to the ground up to the footpath".

When asked whether when he landed on the ground he was conscious, the respondent answered: "I think I pass out a few - I don't know - I don't -----".

The ambulance report indicates that the respondent's state before arrival was "conscious" and the

history taken makes no reference to any head injury. The respondent was driven to Logan Hospital,

the report from which, again, makes no reference to unconsciousness or head injury. Also, it

appears to me significant that the respondent's divorced wife, who did not seem anxious to minimise

the extent of the respondent's injury, made no mention in her evidence of head injury being observed

or complained of. She had come to attend to the respondent at the scene of the accident, shortly

after it happened.

1. The judge made no finding as to whether or not the respondent was rendered unconscious.

   Even if he had been, briefly, unconscious, one would expect the respondent to be able to give some

   account of what it was that hit him. It was not the appellant's vehicle, so can only have been the

   respondent's own vehicle. In view of the answer to interrogatories and the solicitor's letter to which

   I have referred I think the matter should be approached on the basis that if the respondent suffered

   any injury, it was caused by his being struck by the rear door of his van. The respondent said he

   was getting a spare wheel out, preparatory to changing it for one whose tyre was flat. A tyre on

   the van was in fact flat, so it is possible that the respondent was struck while trying to get the spare

   wheel out; but the question is: was he?

2. In summary, then, the respondent produced some objective evidence, namely that of

   Dr Holmes, pointing towards his having suffered a kidney injury, but there was other evidence, to

   which I have referred, suggesting that there was no injury or none of any consequence. The account

   to be considered was that the van door was up, the appellant's vehicle struck the rear of the van

   close to where the respondent was crouched and then the van door moved in such a way as to project the respondent onto the footpath. It could not have done so by moving up; it could not

   move beyond a vertical position and must have come down onto the respondent's back, if his story

   is to be believed. If the van door came down hard onto the respondent's back as he crouched at

   the rear of the vehicle, it is difficult to see how that could have projected him anywhere than into,

   or at least towards, the body of the van. But, if his version is to be believed, it did not do that but

   threw him in such a way that his crouching body was not driven down and towards the van, but up,

   and onto the footpath or even further, into a house yard. The situation explained by the respondent

   makes his experience, as sworn to, like that which a person would expect when passing through a

   doorway, if the door was pushed violently back against his or her body. That would push the body

   back, either through the door or against the door jamb.

3. The photos show that there was damage to the van's rear door beside the damage to the

   body of the van at the point where the appellant's vehicle struck the van. The most obvious

   explanation of the door damage is that it was caused by the appellant's vehicle hitting both it and the

   body of the van beside it, the van door being then closed. The door damage was, plainly enough,

   not caused by the van, but in a collision with the appellant's vehicle. The supposition one is required

   to make is that there were two collisions, the second being, by coincidence, in just the same area

   of the van as the first: this is improbable as is the additional supposition one must make, that the

   second collision occurred with the door being down. Why it should have been down, when it was

   equipped with hydraulic struts to keep it up, is by no means clear. Striking the respondent on the

   way down could not have helped the door to close.

4. All the symptoms of which the respondent complained could have had some cause other than the alleged striking by the door which he gave evidence about. In my opinion, the appellant was entitled to have the probability of the version of the accident given by the respondent

   considered and it was not satisfactory, in the circumstances, to give judgment against the appellant

   without making a finding as to whether the respondent's account was or was not substantially

   correct. In my opinion that account was, considering the matters I have mentioned, so improbable

   that, giving such weight as is appropriate to the, somewhat limited, favourable view of the

   respondent's credibility which the trial judge took, this Court should reverse his Honour's judgment.

   In summary

38 (i) There was no good reason to think the injury complained of was likely to have

happened in some way which the respondent could not recall.

(ii) The version he gave of his mode of injury was an improbable one, since one would

have expected the descending van door, delivering a violent blow to his back, to have projected

him, if anywhere, against the van; also, the van door damage is consistent with it having been hit

while in a closed position.

(iii) Although there is some medical evidence to support the respondent's case, that he

suffered a back injury, there is substantial evidence suggesting that he suffered no, or no significant,

injury.

1. I would allow the appeal with costs.

2. DEMACK J: I have read the draft reasons for judgment of the President and Pincus JA.

   Because my colleagues have reached different conclusions, it is desirable that I state my reasons

   for coming to the conclusion that the appeal should be dismissed.

3. I do not think it is necessary to repeat the facts set out by the President. Rather, I begin by

   referring to the following finding:-

   "I find he was squatting at or near the rear door of his van, which was open; that the impact brought the door down suddenly, and it struck him; and, that he was thrown from the roadway onto the footpath.”

4. I doubt that the later finding can be sustained. However, the other findings seem to me to

   be open on the evidence and I find considerable support for them in the photographs in ex 10 at pp

   180, 181 and 184.

5. The appellant’s motor car sustained substantial damage to the front passenger side. The

   extent of the damage may be attributable in part to the fact that, as a passenger sedan, it was

   designed to crumple on impact.

6. The rear door of the respondent’s van was hinged at the top, so that, when open, it was

   raised up. This exposed the rear ends of the side panels of the van. When the rear door was

   closed, the upper part of it, above the rear lights, covered the rear ends of the side panels. On p

   184 is a photo of the offside rear of the van. It shows a significant compression of the rear of the

   off-side side panel in the vicinity of the rear lights. It shows no compressed damage to the door in

   the immediate vicinity of that compression.

7. Rather, it shows a raised mark on the door panel in the section that would cover the side

   panel when the door was closed. There also appears to be significant indentation on the bottom

   edge of the rear door. This indentation is also obvious on the photo on p 181. It seems to me that

   those marks are consistent with the evidence that the door was open when the van was struck and

   that in the impact it closed downwards. The damage to the bottom edge is consistent with a striking

   of the sedan at some point as it travelled past the van. Such a contact would prevent the door from

   causing major injury to the respondent.

8. The question of what inferences these photographs can bear was dealt with in the following

   passage in the judgment:

   "The defendant’s case relied heavily on the fact the right hand bottom corner of the rear door of the van was bent inwards – something which, at first blush, appears consistent with the door having been closed at the time of the collision since most of the damage is at the corner; but the door itself ended up about two thirds closed i.e. most of the way down, and it is not inconceivable that it was fully open, and after the initial collision, came down and was then struck or bent by some part of the defendant’s vehicle which was, as the photographs show, very badly damaged.”

9. The bending inwards of the door appears to have been caused by a force applied to the

   bottom of the door. The raised mark I have referred to was probably caused by this bending. This

   is seen from the photographs at pp 181 and 184. The result of the application of that force was to

   cause a roughly V-shaped indentation some centimetres in from the right hand edge of the door.

   It is highly unlikely that this damage was caused by the striking of the door when it was closed. The

   compressive force appears to have been applied upwards into the bottom of the door. It is far

   more likely that this damage was caused when the door descended after the initial impact, as the

   quoted passage suggests.

10. As I said, I doubt that the finding that the respondent was thrown from the roadway onto

    the footpath can be sustained. I accept the other findings that I have quoted. If the incident

    occurred in that way, the respondent would have been, without warning, caught up in a life

    threatening situation. It is not surprising if he cannot explain what happened in the seconds

    following impact. It is not surprising that, in quests for answers, he has given different versions.

    However, what happened after the door struck him is mere narrative, except in so far as the

    description of his injuries are concerned. In so far as the different versions affect credibility, that remains an issue best resolved by the Judge who saw and heard the witnesses. I agree with the

    reasons prepared by the President which deal with this issue and the other issues argued on appeal.

11. In my opinion, the appeal should be dismissed with costs.