Nankivell v Insurance Commission of Western Australia - [2015] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NANKIVELL -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2015] WADC 135

CORAM: FENBURY DCJ

HEARD: 14 MAY 2015

DELIVERED : 13 NOVEMBER 2015

FILE NO/S: CIV 281 of 2013

BETWEEN: BRIAN JOHN NANKIVELL
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Negligence - Damages for personal injuries - Motor vehicle accident - Unidentified defendant - Plaintiff only witness - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr L J Swan
Defendant: Mr C C Rimmer

Solicitors:

Plaintiff: Separovic Injury Lawyers
Defendant: Jarman McKenna

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

Jones v Dunkel (1959) 101 CLR 298
Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594

FENBURY DCJ: This is a claim for damages for personal injuries sustained in a motor vehicle accident on 22 July 2011.
The plaintiff, Mr Nankivell, who was the only witness called, was driving a prime mover on the Kwinana Freeway at about 2.00 pm on a Friday. He was traveling in the left hand lane heading south at a speed between 90 and 95 km per hour.
Mr Nankivell asserts that as a result of the negligent driving of an unidentified small white car, he was suddenly forced to take evasive action, lost control of the prime mover and rolled it over.
The driver of the small car did not stop and is unidentified.
Mr Nankivell suffered a variety of soft tissue injuries.
In order to succeed in the claim, Mr Nankivell must prove the unidentified driver was negligent in full or in part. Given the driver was never identified and obviously therefore did not give evidence, Mr Nankivell's evidence stands alone on the issue of the existence of the driver's negligence. If Mr Nankivell's evidence is not accepted on the balance of probabilities, then his claim must fail.
Given Mr Nankivell is the only witness called then obviously his evidence needs to be assessed and scrutinised carefully having regard to the standard of proof. In assessing his credibility and reliability the consistency of his account it an important matter.
Mr Nankivell was 61 years old with approximately 32 years of experience as a multi‑combination truck driver. His driver's licence entitled him to drive a prime mover pulling 'up to three or four trailers'.
On the day in question Mr Nankivell had no driver fatigue issues. He had been directed by his employer to drive the prime mover to Mandurah fuelling up along the way and pick up his trailer. The road was dry. Mr Nankivell was sitting in the driving position significantly elevated above drivers of ordinary passenger vehicles. He had a clear view of the road ahead and of any smaller vehicles in front of him.
Mr Nankivell described the prime mover as having four pairs of rear wheels and a photograph of a similar vehicle was tendered which demonstrates it as a being a large vehicle.

Evidence given at trial

Mr Nankivell's account of the critical event commences at ts 8 where the following question was asked:
… can you explain to the court what has happened since – you've got past the Armadale Road, you're still following this Mitchell's truck. Can you ‑ can you explain now the circumstances leading up to the accident?‑‑‑Yeah, I looked in the mirror and – I always look in there. And I seen this silver – little silver car come up – and I thought (indistinct) behind or do whatever, but he was – he was going pretty fast. And he got in front of the truck and just sat there on the – in the right lane. I was in the left lane.
…
Okay. So the car has got in front of you in the right‑hand lane. What's – what has happened then?‑‑‑Must have been – I don't know approximately a minute and a half, two minutes, he sat out there for and all of a sudden he was in front of me.
What speed do you estimate the defendant was driving at?‑‑‑Well, it'd be approximately around the hundred.
And you say he got in front of the truck, is that without warning?‑‑‑Yeah, no indication, nothing.
And he's got in front of the truck, and then what's occurred?‑‑‑He stopped on the brake lights [sic]. (Indistinct) stopped in front of me.
And what was your reaction?‑‑‑I'm not allowed to say that here. Well, I hit the brakes and tried to swerve to my left to go round him but as soon as the front left wheel hit the sand it bogged down and the truck span around and rolled over.
... Mr Nankivell, could you please explain in your own words what was the cause of your accident?‑‑‑The other driver cutting across in front of me without any indication and braking suddenly.
And you were – and you were unable to stop, is that correct, in a safe manner?‑‑‑If I'd stopped I'd most probably have run into him. If I'd braked – kept on going straight I would have actually run into him.
…
… Mr Nankivell, you understand it is the defendant's position that this accident was attributable to your negligence in either failing to keep a proper lookout, or travelling too close to the vehicle in front, and that you are responsible for the injuries sustained to yourself, no other person? What do you have to say about that?‑‑‑Not really, because I – I know where the truck in front of me was going, and I was just going to sit behind, because I was in no rush to get down there and get back. And that's all I had to do on that Friday, and go home early and most probably leave Saturday afternoon back to Port Hedland again.
…
And you say that you wanted to get the job done, is that correct?‑‑‑Yeah, I just – I had all afternoon to do it.
So you were in no rush?‑‑‑Nuh.
And just – just finally, just for clarity's sake, what is it that you say caused this accident?‑‑‑The person driving the little silver motorcar that cut in front of me, without any warning.
And why did they brake?‑‑‑Well, I'm still trying to work that out today. I don't know why.
In cross‑examination at ts 30 Mr Nankivell said that the prime mover weighed between 9 and 10 tonnes and was about 6½ m long. At ts 31 counsel asked:
Would you agree with me that you didn't apply your brakes at the same time as the vehicle in front of you, did you?‑‑‑As soon as I seen his brake lights come on, I did.
Okay. You'd agree with me, I take it, that it might take you a second or two to react to seeing the brake lights come on?‑‑‑Yes.
Yes. It's common sense?‑‑‑Yeah.
Certain calculations about braking distance and speed and travel were put to Mr Nankivell based upon his evidence that the silver car was eight to 10 m in front of the truck and then it was put:
… What I'm going to put to you, Mr Nankivell, is that on your evidence, the version of events you've given this morning, you couldn't possibly have avoided that car when it put its brakes on when it was eight to 10 metres in front of you. Do you agree with that proposition?‑‑‑No.
Mr Nankivell explained that as soon as he put on his brakes he swerved to the left, in essence, because he knew he could not stop. He also mentioned that he did not know whether the silver car braked by just touching the brakes or whether it braked hard. The gist of his evidence was that as soon as the brakes went on he applied his own brakes.
Mr Nankivell was then taken to a crash report form number 497819 which became exhibit 6. The report was unsigned and undated but Mr Nankivell admitted that he completed it and sent it back to the Insurance Commission (ts 35).
Mr Nankivell agreed that in the report he made no reference at all to the colour or body type of the vehicle that he said cut in front of him.
Mr Nankivell agreed that he provided a description of the details of the crash, in the report, as follows:
While travelling south on Kwinana Freeway on Friday, 22 July 2011 in the left hand lane sit on 90 – 95 km, just after 1400 hours a car passed me and got in front of the truck. After a couple of minutes it brake, I brake, I could see it was going to hit the car so I tried to get to the left of it. The left front wheel went to the sand and pulled the truck around and rolled over. It had been raining early, not at the time of the accident, the car drove off.
Having agreed that this was how he described the accident in the crash report three weeks after it, it was then put to Mr Nankivell:
You would agree with me there's nothing in there at all about a car cutting in front of you in the way that you've described in your evidence this morning?‑‑‑No, just a car.
Yes. Nothing at all about it cutting in front of you?‑‑‑No, yeah.
Only being eight metres or so in front of your prime mover when it moved into your left lane, is there?—No.
No. There's also nothing in there at all about you following another truck, the Mitchell's truck that you've been talking about this morning, is there?‑‑‑No.
No. And there's also no reference at all to the vehicle in front of you suddenly braking is there?‑‑‑No.
It was also put:
And in this version in the crash report form you say you were following the car for two minutes?‑‑‑It would have been – would have been two minutes.
Well, that's what the form says and I'm putting to you that that's exactly what happened, you followed this vehicle for two minutes, you agree with that?‑‑‑Well, if you say I have to, yeah.
It was then pointed out that in fact the reference was to 'a couple of minutes' and not to 'two minutes'.
It was then put:
What I'm putting to you Mr Nankivell, is that you did – you followed the vehicle for a couple of minutes, as you've indicated in this crash report form, before it put its brakes on?‑‑‑The vehicle pulled in front of me and it was in front of me so I followed it.
Okay. For a couple of minutes?‑‑‑Not for a couple of minutes.
It was then later put, at ts 39, Mr Nankivell agreed that he did not tick a box in the form which he was required to tick if he was asserting that the vehicle involved was 'changing lanes'.
Mr Nankivell made a written statement about the matter in numbered paragraph form on 8 January 2013, some 18 months later. Picking it up from par 7 as follows:
7.I was traveling at approximately 90 to 95 kilometres per hour. I generally travel slightly below the speed limit. The speed limit was 100 kilometres per hour.
8.There was another truck and trailer approximately 30 metres ahead of me.
9.In approximately June 2011 I received a $300 ticket for following too closely behind another vehicle and I was conscious of not travelling too closely behind another vehicle.
10.The traffic was light to medium on this day.
11.I had good visibility and I was sitting in an elevated position. I could see if cars indicated to change lanes.
12.I became aware of a late model silver hatchback travelling alongside of me.
13.I remember looking down and seeing the silver car. I do not recall any other details of the car but I believe it would have been one to two years old.
14.I estimate the silver car was alongside of me for around 20 seconds when suddenly the driver of the silver car passed me and then pulled in front of me from the right and when the silver car was approximately 8 metres in front of my prime mover the silver car braked really hard.
15.I estimate the silver car slowed to around 30 kilometres per hour.
16.I panicked as I was worried I would collide with the silver car.
17.My immediate reaction was to apply my brakes to slow down.
18.My prime mover slowed to around 30 kilometres per hour.
19.The accident happened very quickly. Suddenly I realised that if I do not do something quickly I would likely collide with the silver car.
20.To avoid the risk of colliding with the silver car I veered to the left.
21.The silver car did not drift sideways from the right hand lane to my lane on the left. It was a sudden turn with no indication and no warning and I believe the driver of the silver car deliberately pulled in front of me and braked.
22.The left wheel of my prime mover hit the wet sand and pulled my truck around and the prime mover spun 180 degrees and landed in the bank facing the opposite direction I was travelling.
The court then raised an issue about whether or not the driver of the silver car might have been wanting to exit the freeway up the ramp for Russell Road and there was some discussion and a map was produced which became exhibit 7. The accident location on the map appeared not to be near any off‑ramp.
Mr Nankivell's attention was then drawn to exhibit 3 being a workers' compensation claim form with QBE Insurance where he agreed that there was no mention at all in that document of there being a vehicle suddenly coming across on the right hand side.
It was put to Mr Nankivell generally that the documentation created following the accident contained no reference to a version of events consistent with the description that he gave in his evidence. It was put to him, with some force I think,
If your version that you gave this morning is what actually happened, you would have been pretty frustrated and pretty annoyed and wanting to tell everybody that, 'Some bloke just cut me off' and is – has taken off, wouldn't you?‑‑‑Yeah, I was pretty pissed but I was in more pain than I was annoyed.
In re‑examination Mr Nankivell could not offer any explanation as to why there was no reference in the documentation prior to his January 2013 statement to his claim that the vehicle cut across in front of him (ts 65). In the prior documentation his references primarily contained an assertion that the vehicle in front of him 'braked' or 'braked suddenly'.
It is clear from the above evidence and exchanges that there is a significant difference between Mr Nankivell's descriptions of the accident prior to his January 2013 statement and what is contained in that statement.
To my mind if a truck driver was involved in an accident caused by a small passenger vehicle, without warning, cutting in front of him and then braking suddenly, there would very likely be significant emphasis on the vehicle's manoeuvre. The suddenness of the entry into the lane and the braking would be of the essence of what occurred in terms of causing the truck driver to take evasive action to deal with the sudden turn of events if not emergency.
The difficulty is that in the statements made by Mr Nankivell after the accident up until 18 months or so later, there is no reference at all to what he said in the witness box was the key or primary cause of the accident. In trying to contemplate why that is so it is hard to escape the suspicion, if not conclusion, that Mr Nankivell sought from January 2013 to improve his chances of success in the matter perhaps by embellishing the pre‑trial written records.
Mr Nankivell gave sworn evidence and was cross‑examined. He was a man of few words, however he gave his evidence in a satisfactory manner. The difficulty for him is the variation in his accounts about the cause of the accident in pre‑trial statements.
In my view, if the accident occurred as Mr Nankivell says it did in his evidence, then it is inconceivable he would not have made mention of that in the documentation immediately post‑accident. The fact that he did not causes me to have concerns about his version of the cause of the accident. This is not to say that I disbelieve he was injured in the accident and took evasive action, appropriately perhaps, in an emergency. However, to succeed in the action he has to satisfy the court that the reason this emergency arose was through the negligence of the defendant or, more exactly, the unidentified driver. Putting aside the issue of a sudden lane change followed by sudden braking by this very small car in front of a gigantic prime mover, the impression I get from the materials is that, probably, Mr Nankivell was either driving too close or was not concentrating before the vehicle in front of him braked. That seems to me to be the more likely cause of what occurred. I strongly suspect he was too close and as soon as the driver touched his brakes and his brake lights illuminated, Mr Nankivell over‑reacted. The very fact he says he was going to hit the car suggests he was too close. There is insufficient evidence to find the driver of the car was negligent.
My attention was drawn to a number of authorities including Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594 and also Jones v Dunkel (1959) 101 CLR 298 where Dixon CJ observed:
In an action of negligence .. for personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that 'you need only circumstances raising a more probable inference in favour of what is alleged'. But 'they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture … 'All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood'. 'But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
As his Honour went on to say, and adopting, with respect, his phraseology:
In the present case the circumstances appearing in evidence do not in my opinion support any inference that may reasonably be drawn that [the other driver] was guilty of negligence and thereby caused [the accident].
In my view Mr Nankivell has failed to prove the other driver was responsible for this unfortunate accident and the claim must therefore be dismissed.