Nominal Defendant v Saleh - [2011] NSWCA 16

Court of Appeal

New South Wales

Case Title: Nominal Defendant v Saleh

Medium Neutral Citation: [2011] NSWCA 16

Hearing Date(s): 24 February 2010

Decision Date: 17 February 2011

Jurisdiction:

Before:
Beazley JA [1]
Giles JA [2]
McColl JA [3]

Decision:
1. Appeal allowed.

2. Set aside the verdict and judgment for the respondent of $1,333,398 and the order that the appellant pay the respondent's costs.

3. Remit the proceedings to the District Court for a new trial on all issues.

4. Costs of the first trial to be at the disposal of the judge conducting the new trial.

5. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
TORTS - negligence - motor vehicle accident - whether unidentified vehicle caused plaintiff’s accident - whether verdict in plaintiff’s favour sustainable

APPEAL - appellate review of findings - whether errors in process of fact-finding - whether denial of procedural fairness -whether defendant deprived of fair trial - whether substantial miscarriage of justice

APPEAL - appellate review - natural justice - whether denial of procedural fairness - whether case determined in plaintiff’s favour substantially on points not raised by plaintiff and not identified by primary judge at trial - whether primary judge acted of own motion absent cross-examination or submissions by plaintiff to reject evidence of defendant’s witnesses - whether failure to consider parties’ submissions - whether failure to give party opportunity to deal with potential adverse finding - whether primary judge’s conclusions favouring plaintiff’s case soundly based

APPEAL - appellate review - whether denial of procedural fairness to defendant to award plaintiff substantially more than amount sought for head of damages

EVIDENCE - expert evidence - opinion - whether factual basis for expert opinion established - whether facts expert relied on to form opinion â€œsufficiently likeâ€� facts established at trial

EVIDENCE - expert evidence - report admitted without objection - oral evidence adduced without objection - whether open to primary judge to reject opinion on basis factual foundation not established

EVIDENCE - cross-examination - failure to cross-examine - whether trial judge may reject evidence not challenged in cross-examination - whether rejection of evidence not challenged in cross-examination may lead to wrong finding of fact

Legislation Cited:
Evidence Act 1995 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Suitors' Fund Act 1951 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adamson v Ede [2009] NSWCA 379
Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313
Balenzuela v De Gail [1959] HCA 1; 101 CLR 226
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Dixon v Whisprun Pty Ltd [2001] NSWCA 344
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Harrison v The Nominal Defendant (1975) 50 ALJR 330 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jobst v Inglis (1986) 41 SASR 399
John v Rees [1970] Ch 345
Jones v National Coal Board [1957] 2 QB 55
Knight v Maclean [2002] NSWCA 314
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Nominal Defendant v Swift [2007] NSWCA 56
Palmer v Dolman [2005] NSWCA 361
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
Re Architects of Australia Association; Ex parte Municipal Officers Association (1989) 63 ALJR 298 (also known as Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208)
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Rebenta Pty Ltd v Wise [2009] NSWCA 212
Reid v Kerr (1974) 9 SASR 367
Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Shimokawa v Lewis [2009] NSWCA 266
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127
Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; (2002) 23 NSWCCR 463

Texts Cited:

Category: Principal judgment

Parties:
Nominal Defendant (Appellant)
Khoda Saleh (Respondent)

Representation

- Solicitors:
Solicitors:
Sparke Helmore Lawyers (Appellant)
Milicevic Solicitors (Respondent)

- Counsel:
Counsel:
GM Watson SC with JE Hynes (Appellant)
G Miller QC with J Jobson (Respondent)

File number(s): 2009/298283

Publication Restriction:

Contents

NATURE OF THE CASE	[6]
LEGAL PROPOSITIONS	[13]
THE PRIMARY JUDGMENT
Issues	[31]
Liability	[33]
Police sketch	[37]
Assessment of witnesses	[40]
1 Mr Jaouhar	[41]
2 Mr Collin	[52]
3 Miss Cirino	[59]
4 Expert evidence	[66]
(a) Lane of travel and speed of the plaintiff's vehicle	[76]
(b) Whether physical contact occurred between the plaintiff's vehicle and an unidentified vehicle	[77]
(c) Relevant events leading up to the collision with the power pole	[78]
(d) Was the driver of the unidentified vehicle negligent?	[79]
(e) Was there contributory negligence on the plaintiff's part?	[80]
Due inquiry and search	[81]
Damages	[89]
ISSUES ON APPEAL	[96]
SUBMISSIONS	[99]
Submissions of the respondent	[105]
Due inquiry and search	[113]
Contributory negligence	[115]
The course of the trial	[117]
SOME PRELIMINARY REMARKS	[137]
CONSIDERATION
Lay witnesses
A Miss Cirino	[143]
A1. Inconsistencies as to own speed	[150]
A2. Inconsistencies as to sounds heard	[166]
A3. Reliance on "inconsistent" evidence regarding sounds heard	[175]
i. "Screeching" and "revving"	[176]
ii. "Motors" plural	[183]
A4. The darkness	[187]
A5. Headlights	[195]
A6. Handbrake	[198]
B. Mr Collin	[210]
B1. Speed	[212]
B2. Description of the accident	[219]
(i) The possibility of two cars	[223]
(ii) Failure to see the skid or loss of control	[229]
(iii) The darkness and the headlights	[230]
C. Mr Jaouhar's evidence	[234]
Expert witnesses
D. Mr Keramidas	[249]
Rejection of Mr Keramidas' report	[250]
D1. Failure to tender transcript of Mr Jaouhar's evidence in the Local Court	[252]
(i) Procedural unfairness	[256]
(ii) Erroneous	[260]
Rejection of Mr Keramidas' oral evidence	[266]
D2. Assumptions as to when braking commenced	[267]
D3. Reliance on police sketch	[273]
D4. Unexplained assumption regarding use of photographs	[281]
D5. Failure to consider a range of possible "mechanisms"	[286]
D6. Failure to consider evidence supportive of appellant's case	[298]
(i) Lane of travel	[299]
(ii) Spin out of unidentified vehicle	[304]
Mr Keramidas: conclusion	[306]
CONCLUSION	[312]
ORDERS	[318]
Schedule

JUDGMENT

BEAZLEY JA: I agree with McColl JA.

GILES JA: I agree with McColl JA.

McCOLL JA: The Nominal Defendant appeals from the judgments of his Honour Judge Levy SC in Saleh v Nominal Defendant [2009] NSWDC 1 (the "primary judgment") and Saleh v Nominal Defendant (No 2) [2009] NSWDC 165 (the "costs judgment"). In the primary judgment his Honour gave what he described as an "interim judgment ... on the substantive issues ... in the sum of $1,033,398" in favour of Khoda Saleh, the respondent, in order that the parties could quantify the final judgment by adding funds management charges. In the costs judgment his Honour gave final judgment for $1,333,398 in the respondent's favour and ordered the appellant to pay his costs on the ordinary basis.

The appellant complains about the primary judge's findings on liability (including causation), contributory negligence, due search and inquiry and as to two heads of damages. Prominent in its submission is that the judgment reveals that in finding in the respondent's favour, the primary judge acted of his own motion in the absence of cross-examination or submissions by the respondent to suggest why its witnesses' evidence should be rejected, overlooked its submissions and preferred any evidence which could assist the respondent and rejected any evidence which could assist the appellant. It complains that his Honour's approach to finding in the respondent's favour was a denial of procedural fairness and that the primary judge's reasons for many material factual findings were unsound.

I have concluded that the appellant has made good its complaints that it was denied natural justice (procedural fairness) in a number of respects in the primary judge's evaluation of the evidence and that critical fact findings were flawed. Regrettably the outcome of that conclusion is that there must be a new trial.

NATURE OF THE CASE

The respondent was involved in a motor vehicle accident at around 6pm on 6 June 2000. The accident took place while the respondent was driving home from work in his yellow Holden Gemini. He was 17 years old and held a provisional licence. He was travelling in one of three southbound lanes on Stacey Street, Bankstown.

At the trial, which was substantially conducted in May 2008, he sought to establish that the accident occurred because another southbound vehicle changed lanes from the right immediately in front of his vehicle in a manoeuvre that involved contact between the vehicles, that as a result, he braked his vehicle which then skidded across the roadway and collided first with a power pole and then with a nearby fence. He claimed that the identity of the other motor vehicle and its driver was unknown despite due inquiry and search. Hence he sued the Nominal Defendant: see primary judgment (at [2]). By the time crash reconstruction experts were engaged to provide opinions for the purposes of the claim, the respondent's vehicle was not available for inspection. The experts were dependent upon police photographs taken at the accident scene.

The appellant defended the proceedings on a number of bases. First, it disputed the assertion that an unidentified motor vehicle was involved in the accident. It asserted the respondent was driving in the lane near the median strip and the accident happened because he was driving too fast, and also because he applied his handbrake inappropriately, leading to him losing control of his vehicle (see primary judgment [9]). Secondly, in the event the primary judge accepted the unidentified motor vehicle case, it asserted the respondent had failed to establish that he had conducted "due inquiry and search" to establish the identity of the owner and/or driver. Thirdly, it claimed the accident was caused by the respondent's inappropriate application of the handbrake. Fourthly it claimed the respondent was guilty of contributory negligence, in that he was speeding and in applying the handbrake. It also resisted both heads of damages claimed by the respondent and the extent of those claims.

The respondent gave evidence but, due to the injuries he had suffered in the accident, was unable to cast any light on the circumstances in which he had been injured. The respondent relied upon Mr Jaouhar, the only passenger in his vehicle, to give the lay evidence of how the accident occurred. He also called Mr Grant Johnston, a crash reconstruction expert, whose two reports were tendered without objection.

Two other motorists, Miss Cirino and Mr Collin, who were also driving south on Stacey Street at the time of the accident behind, but in close proximity to the respondent's vehicle, gave evidence in the appellant's case. The appellant contended at trial that their evidence established that no other vehicle was involved in the accident and that prior to his vehicle's lateral movement across the road, the respondent was travelling at high speed. The appellant also called Constable Cassidy, the police officer who attended the accident scene. It called Mr William Keramidas, a crash reconstruction expert, as its expert witness. His report was also tendered without objection.

As a result of the accident the police charged the respondent with negligent driving. Mr Jaouhar and Miss Cirino gave evidence at the Local Court hearing of that charge in April 2000. Some of the primary judge's findings were based on alleged conflicts between the lay witnesses' evidence in the Local Court hearing and at trial and also his assessment of evidence of the appellant's expert, Mr Keramidas, which referred to a summary, but not the complete testimony, of Mr Jaouhar's evidence at the Local Court hearing.

The primary judge found in the respondent's favour on all disputed areas of liability, contributory negligence and damages.

LEGAL PROPOSITIONS

The appellant's complaints must be evaluated in the context of the role of the Court on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), which is by way of rehearing. That, as Giles JA explained in a convenient analysis of the authorities, requires the Court to "conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons": Shimokawa v Lewis [2009] NSWCA 266 (at [176]).

As will become apparent, much of the primary judge's reasoning towards his conclusion in the respondent's favour turned on his rejection of substantially all of the appellant's witnesses' evidence - albeit not on credibility grounds. That factor does not prelude the Court exercising its rehearing function, although it should make "due allowance" for the fact it has not seen or heard the witnesses. If, after making such due allowance, the Court concludes error has been shown and a substantial miscarriage of justice has occurred, the Court may, inter alia, order a new trial: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [25] - [27]) per Gleeson CJ, Gummow and Kirby JJ; Uniform Civil Procedure Rules 51.53.

Before embarking upon a consideration of the primary judgment and the appellant's complaints, it is appropriate to set out some fundamental propositions concerning the issue of procedural fairness the appellant identifies as at the forefront of the appeal.

Parties to litigation are entitled to a fair trial at which they can put their case properly before the judge: Jones v National Coal Board [1957] 2 QB 55 (at 67), referred to with approval in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 (at 145) per Mason, Wilson, Brennan, Deane and Dawson JJ. Where a party is denied a fair trial, a new trial may be ordered unless to do so would be a futility. Where a "denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference": Stead (at 145).

"Procedural unfairness" is a convenient description of the appellant's complaint that the primary judge's approach denied it a fair trial. The appellant's complaint may also be expressed as raising a "question of practical fairness and justice" (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 (at [4]) per Giles JA) or a requirement of "fair play and commonsense": Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 (at [32]) per Chernov JA (Warren CJ agreeing) citing Jobst v Inglis (1986) 41 SASR 399 per Jacobs J.

Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 per Gleeson CJ (at [37]). "[T]he experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge": Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 (at [83]) per Kirby J, referred to with approval by Redlich JA in Ucar (at [57]).

The "judicial obligation [to accord procedural fairness] is ... concerned with affording a reasonable opportunity to present or meet a case [an] opportunity [which] is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle": Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 (at [4]) per Mason P.

Campbell JA (with whom Giles and Hodgson JJ agreed) discussed the application of natural justice in court proceedings extensively in Adamson v Ede [2009] NSWCA 379 (at [53] - [63]). His Honour pointed out (at [59]) that "[b]oth in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case", then referred to the statement by Gaudron J (with whom Dawson J agreed) in Re Architects of Australia Association; Ex parte Municipal Officers Association (1989) 63 ALJR 298 (at 305) (also known as Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208) where, after referring to this requirement, her Honour said:

"...procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue..."

In Chaina, Basten JA also observed after referring to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 51.53:
"28 The criminal cases addressing the question whether there has been a substantial miscarriage of justice distinguish between:

(a) procedural unfairness which can be shown to have led to an unjust conviction;

(b) unfairness which precludes an assessment of the justness of the outcome, or

(c) a departure from an essential requirement of a trial which itself involves a substantial miscarriage of justice without the need to consider the possible effects on the outcome.

...

29 In civil proceedings it is also helpful to consider the nature of the error asserted by reference to the categories identified above. Stead fell within the second category. In Stead the plaintiff had been denied a 'fair trial' because he had been stopped from presenting his case properly before the judge ... Because the appeal court had not heard the witness, it could not say that the lost opportunity made no difference. To come within Stead, an appellant must first demonstrate a procedural ruling capable of preventing a trial according to law. Not every refusal of an adjournment, limitation on cross-examination or refusal to allow a plaintiff to reopen which is adverse to one party's interests will be so characterised. It is necessary in each case, therefore, to consider the extent to which the alleged unfairness may have had an impact on the outcome and, where that possibility arises, whether the extent of the impact can be assessed on the appeal."

If one transposes "unjust verdict" for "unjust conviction" in Basten JA's first category, one readily encapsulates the gist of the appellant's complaint. It can be illustrated by propositions some of which are extracted from administrative law areas, but which have been held to apply to civil proceedings.

Thus, "[i]t is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of 'a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view' ": Ucar (at [22]) per Chernov JA. His Honour expanded on this proposition (at [27]), saying:

"... the general rule [is] that a party should be given the opportunity to respond to matters prejudicial to its interests that are known only to the court and which might be taken into account in the determination of issues that may affect the party's property, rights or legitimate expectations. And, as will be explained later, subject to qualifications, failure to disclose such matters will generally result in the decision being set aside."

Where a party is represented the focus will ordinarily be on what should in fairness and justice be made known to the representative. It is not required that the representative be apprised of the judge's views generally, although if the judge is minded to decide the case on a completely different basis from that on which the case is being conducted that should be raised: Chaina (at [4]) per Giles JA referring to Seltsam (at [78]) per Ipp JA, Mason P agreeing.

I should not leave this discussion of principle without referring to Heydon J's reasons in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319. Under the heading "The centrality of 'hearings' " (at [141]ff) his Honour discussed (footnotes omitted):

" ... the principle that before any judicial decision is made which has substantive consequences there generally should be a 'hearing'. A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow."

His Honour elaborated on this proposition, in so doing referring (at [145]) approvingly to Megarry J's decision in John v Rees [1970] Ch 345 (at 402):

"[T]hose with any knowledge of human nature who pause to think for a moment [are not] likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

Heydon JA then said (footnotes omitted):

"146 Illustrations. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them. Many illustrations of the duty only to make substantive judicial orders after giving a hearing - that is, not to act ex parte or sua sponte - can be found. A court may not decide a case on a point not raised by one of the parties or by the court for the consideration of the parties. Non-compliance by a court of trial with the duty to give a hearing on a question of law which 'must clearly be answered unfavourably to the aggrieved party' will not lead to a new trial, but where no hearing is given on the question whether a finding of fact turning on witness credibility should be made, it is not easy to conclude that a new trial should be refused on the ground that even if a hearing had taken place, 'it could have made no possible difference to the result'. The court is not entitled to take into account factual material not in evidence without notice to the parties. The court is not entitled to take judicial notice of particular matters of fact after inquiry without notifying the parties of the inquiry and giving them the opportunity to controvert or comment on the source in which the inquiry is made..."

One specific illustration pertinent to one of the appellant's damages complaints should be mentioned. It is a denial of procedural fairness to a defendant to disregard the submissions of counsel for a plaintiff and, without notice to the defendant, award substantially more than is sought for a head of damages: Seltsam (at [77] - [79]) applying Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; (2002) 23 NSWCCR 463.

As I have said, a new trial will be ordered if the appellant demonstrates that the denial of natural justice deprived him or her of the possibility of a successful outcome: Stead (at 147). The latter "principle ... at general law is often sourced to Balenzuela v De Gail [1959] HCA 1; 101 CLR 226, and [is] ... encapsulated in this jurisdiction in r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW), that no new trial should be ordered unless there has been some substantial wrong or miscarriage of justice": Chaina (at [26]) per Basten JA (with whom Giles JA and Young CJ in Eq agreed).

The penultimate proposition in the previous paragraph was explained by Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at [4]) by reference to Stead in the following terms (footnotes omitted):

"It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent misstatement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal." (emphasis added)

THE PRIMARY JUDGMENT

Issues

The primary judge identified the following issues as arising on the liability and damages cases:

"10. The liability issues for determination are:

(a) In which lane and at what speed was the Plaintiff's vehicle travelling in the events leading to the collision;

(b) Did physical contact occur between the Plaintiff's vehicle and an unidentified vehicle at the scene;

(c) What were the relevant events of the collision;

(d) Was the driver of that unidentified vehicle negligent;

(e) Was there contributory negligence on the Plaintiff's part and if so, was this a relevant cause of the collision and if so, in what apportionment;

(f) Has the Plaintiff discharged the burden of showing that the owner or driver of the unidentified motor vehicle cannot be established after due search and inquiry?

11. The damages issues for determination are:

(a) The Plaintiff's pre-accident situation and prospects;

(b) The Plaintiff's injuries and the immediate aftermath of such injuries;

(c) The Plaintiff's residual disabilities;

(d) The assessment of the individual claimed heads of damage.

12. The determination of the liability issues requires detailed analysis of complicated expert reports. The determination of the damages issues requires analysis of voluminous hospital and medical reports and credit issues concerning the Plaintiff."

I would add that, as will become apparent, the issue of liability required the analysis of lay evidence. The respondent suffered brain damage in the accident and had no recollection of what had happened. The evidence about the unidentified motor vehicle came, as I have said, from the sole other occupant of his vehicle at the time of the accident, Mr Jaouhar, who was the respondent's brother-in-law and friend.

Liability

At the scene of the accident Stacey Street comprised three southbound lanes on a slight downhill grade which incorporated a sweeping curve to the left with a radius of about 500 metres. The applicable speed limit for the area was 70 kph (at [5]). The roadway was divided in its centre by a median strip (at [36]).

At the trial the three lanes were described as follows:

"Lane 1 was the gutter or kerbside lane while Lane 3 referred to the lane adjacent to the median strip which was also sometimes referred to as the 'median lane'. At the intersection of Stacey Street with Canterbury Road Lane 1 was a left-turn lane. At a point further south from where any relevant events occurred Stacey Street widened to four lanes, the additional lane being a right-turn lane."

The right-turn lane was not relevant to the liability issues.

There appears to have been a controversy at trial about the state of the natural light at the time of the accident. The primary judge concluded from meteorological evidence which showed that sunset had occurred at 16:54 hours on the day of the accident, that at the time of the collision - about 6pm according to his Honour (at [2]) - it was already completely dark. This meant his Honour rejected the evidence of Mr Collin and Miss Cirino which suggested the contrary. Mr Collin thought it was not fully dark but dusk. Miss Cirino thought it was "darkish" but not pitch black. His Honour considered their evidence in this respect "to be imprecise in its terms": at [30]). He later used it as one reason to doubt the reliability of their observations.

Police sketch

A matter which assumed significance in the primary judge's determination of the liability issue was the sketch reproduced below which Senior Constable Glenn Cassidy, the police officer who attended the scene of the accident, drew in his police notebook:

It should be noted that it was common ground that the line which appears in the centre of the sketch was a tick placed on the sketch by Constable Cassidy's supervisor.

Constable Cassidy gave the following evidence in chief about the preparation of the sketch:

"Q. Now on the drawing that you made of the skid marks, you attempted, did you, to reproduce where they started and where they finished?

A. That's right.

Q. Did you try to do that as accurately as you could?

A. Yes.

Q. And did you attempt to record the path that the skid marks took?

A. Yes.

Q. And did you attempt to do that as accurately as you could?

A. Yes.

Q. And were you, when you were there that night and produced this diagram, comfortable that you'd done as well as you could in recording faithfully those three features, the commencement, the finish and the path of the skid marks?

A. Yes."

The following exchange took place in cross-examination:

"Q. I don't think from your comment about your good artwork you profess that this [the sketch] is either to scale or at all accurate as to - apart from the measurement of the length - the nature of the skid marks. Is that right?

A. The shape of the skid marks is accurate?

Q. Yes.

A. It's definitely not to scale.

Q. In terms of distances from lane markings to the other, it's fair to say that you'd be guessing as to where the skid marks commenced - whether it was in the middle of the lane or towards one side of the lane or the other, is that right?

A. Yes, I said - I think I've said that before.

Q. Now I suppose the thing about skid marks is to try and indicate to some degree where those skid marks started and where they finished.

A. Yes."

Assessment of witnesses

The structure of the primary judgment was such that the primary judge assessed the lay witnesses' evidence at two stages. First, under his heading "Consideration of factual evidence from liability witnesses" and secondly under the heading "Determination of liability issues". His Honour's assessment of those witnesses, in the light of the appellant's complaints, is best understood by seeking, as I have done below, to consolidate those findings.

1 Mr Jaouhar

Mr Jaouhar gave a statement at the accident scene to Constable Cassidy which was recorded in his notebook as follows:

"Q. What happened?

A. We were driving in this lane (indicating Lane 2). The guy in front slammed his brakes on hard. Khodr slammed his brakes hard. They didn't work properly so he slammed the handbrake on hard. We slipped, lost control + hit the pole + that's all I remember..."

The proposition that another vehicle had come into contact with the respondent's vehicle prior to it skidding across the road appears to have first emerged in Mr Jaouhar's evidence in the Local Court proceedings. At those proceedings and at trial he said that prior to the respondent losing control of his vehicle the other vehicle gave the respondent's vehicle "a bit of a nudge" on the driver's side.

Mr Jaouhar agreed at trial that the evidence he gave in the Local Court proceedings "contained more detail than that which he provided to the police at the scene". His explanation for this difference was that he was in shock and in a dazed state at the scene and he had only told the police officer the "the basic stuff" whereas at the time he gave subsequent evidence he said he had "... more time to know what happened, and to sink it all to my brain as to what exactly happened" (at [46]).

The primary judge described Mr Jaouhar as the only passenger in the respondent's vehicle and apparently "well placed to be able to describe the continuum of events leading to the collision." His Honour set out Mr Jaouhar's description of the accident referring, on two occasions (at [35] and [42]) to Miss Cirino's evidence either to clarify a point said to have been left unclear by Mr Jaouhar's evidence or as corroborative of an aspect of Mr Jaouhar's evidence.

His Honour noted (at [44]) the challenge to Mr Jaouhar's credit to the effect that he had invented the involvement of an unidentified vehicle in order to help the respondent who was his friend and relative by marriage. He then referred to other issues put to Mr Jaouhar in his cross-examination as to whether, in effect, prior to the accident, the respondent's vehicle was travelling in conjunction with other friends who were "playing road games described ... as 'fish tails' ". His Honour noted that Mr Jaouhar "forthrightly denied those suggestions". It is not plain whether that statement referred both to the credit challenge and the road games proposition. I infer it was the latter because that aspect of the cross-examination was dismissed on the basis that despite its specificity "no contrary evidence was called to describe the occurrence of such alleged road games and fish tail manoeuvres." His Honour did not deal specifically with the credit challenge.

The primary judge described Mr Jaouhar's statement to Constable Cassidy at the scene "suggesting the presence of another vehicle" as in his Honour's view "contemporaneously corroborative of his evidence concerning the presence of another vehicle at the scene" (at [45]).

The primary judge dealt briefly with propositions put to Mr Jaouhar as, in substance, to the development of his account of the collision to the point where it involved a car having nudged the respondent's vehicle. He inferred (at [46]) that after the evening of the actual collision Mr Jaouhar had "had time to gather his thoughts and recollections in order to provide a more detailed and accurate account." Referring to a concession by Mr Jaouhar that he should have told police about the other vehicle at the scene, the primary judge found that the comment in his police statement referring to "the guy in front" was an attempt on his part to inform the police of the presence and involvement of another vehicle (at [49]). His Honour then referred to evidence Mr Jaouhar gave in chief to try to explain why he did not tell police at the scene about the other vehicle:

"Q. Why was that?

A. At that time of the accident, like I said, when the police approached me, I didn't - I just - I just gave them like a - I don't know why I did - didn't tell them about the car, but this - I told them there was a car involved in the accident."

The primary judge accepted (at [50]) that Mr Jaouhar's answer "may appear to be difficult to understand at first reading when viewed in stark print without the benefit of it being enlivened by observing the manner of Mr Jaouhar in giving this evidence because in his evidence Mr Jaouhar did not express himself in a fluent or articulate manner." The primary judge said he had "observed and noted that when he was giving evidence he was not at ease or relaxed" and inferred that could have been the case when he was interviewed at the scene. His Honour did not "discount the possibility that the brief statement of Mr Jaouhar recorded in Senior Constable Cassidy's notebook was a condensed summary of a lengthier and far less articulate account given by him at the scene."

The primary judge concluded that "Mr Jaouhar left [him] with the impression that he was doing his best to give a sincere and accurate account of his recollection of the events" (at [51]).

The primary judge concluded (at [168]) for the reasons which I set out below, that he could not rely on either Mr Collin's or Miss Cirino's evidence on the critical issues going to liability. He also rejected (at [168]) the expert evidence called by both parties on the issue of lane of travel and speed or (at [169]) found their evidence did not provide a basis for relevantly contradicting Mr Jaouhar's evidence.

The primary judge concluded (at [170]) that Mr Jaouhar's account of the events was, in substance, reliable and to be preferred to that of the independent lay witnesses.

2 Mr Collin

Mr Collin was travelling south in the kerbside lane of the three southbound lanes in Stacey Street in a medium sized four-wheel drive vehicle which was to a degree elevated (at [52]). The primary judge set out his account of the lead-up to the collision as follows (at [53]):

"... he stated he saw a car 'flash' between traffic from the far right lane adjacent to the median strip into the middle lane and also from the middle lane to the kerbside lane. He stated there were two 'flashes' between the gaps in the traffic followed by the appearance of dust and debris."

and (at [55]):

"When Mr Collin was asked whether he had seen another vehicle in the area he stated:

'A. I have no recollection of anything that happened around this incident'."

The primary judge recorded Mr Collin's cross-examination relevantly as follows (at [59]):

"'...A. The flash, flash, the debris coming up and sort of sickening feeling that there had been an accident.

...
Q. You see - I am not being critical of you but you're surmising that the vehicle must have come from the outside lane because you saw a flash-flash. Is that fair to say?

A. No I actually saw a gap between the outside lane - our right-hand side lane and the middle lane. The car moved between that - through that gap and I also saw it move through the gap between the middle lane and the kerbside lane or gutterside lane.

Q. What was the distance between your point of observation and those vehicle movements?

A. That is what I think was about 100 metres.

Q. And what you saw was a vehicle which appeared to move across three lanes, is that right?

A. Yes.

Q. But you couldn't tell the colour of the vehicle could you?

A. No.

Q. All you saw was what you thought was a vehicle going flash, flash into the intervening spaces between the lanes?

A. Well, it definitely was a vehicle.

Q. There could have been two vehicles that crossed lanes, couldn't there? In other words, there could have been a vehicle that swerved from the median lane across a vehicle in the middle lane, that was one flash, and then the vehicle in the middle lane being forced off to the left, that's another flash. That could have happened, couldn't it?

A. I think that possibly could have because I don't recall, you know, specifically seeing a particular colour vehicle or type of vehicle in these flashes, yeah.

Q. All you were aware of is that there was this flash, flash.

A. Yes, and then the - accident on the side of the road.'" (emphasis added)

His Honour stated:

"60. By his second-last quoted answer, Mr Collin conceded the possibility of the involvement of another vehicle in the events of the collision, consistent with the case the Plaintiff was seeking to make based on the evidence of Mr Jaouhar."

Mr Collin also gave evidence that he formed the impression the respondent's car was travelling "abnormally fast" (see [146]). Of this evidence his Honour said:

61. When Mr Collin was asked about the speed of the Plaintiff's vehicle he said he could not judge the speed of the vehicle but knew the speed was abnormally fast. In view of this evidence and in view of what must have been the very limited period of time available to Mr Collin for such an observation, I have to consider the evidence as a whole in order to evaluate the reliability of the evidence of Mr Collin to the effect that the Plaintiff's vehicle was travelling abnormally fast. In particular, I have to consider the significance of his evidence that the traffic was moving normally at the time."

The primary judge (at [146]) placed little weight on Mr Collin's evidence that the vehicle he saw was travelling "abnormally fast" because:

·     Mr Collin had "limited opportunity" to observe the respondent's car and determine its speed;
·     Mr Collin's observations were made from at least 100 metres north of the incident; and
·     Mr Collin could not describe the time or distance over which he observed the travel of the respondent's vehicle.

The primary judge also regarded Mr Collin's observations concerning the lane of travel of the respondent's vehicle as rather limited (at [147]). Again this assessment was based in part on the distance from which Mr Collin's observation was made. His Honour regarded Mr Collin's observation of two flashes as "an overly simplistic conflation of events and therefore unreliable as an accurate account". There were four reasons for this:

·     Mr Collin conceded the possibility there were two cars that changed lanes;
·     Mr Collin did not agree that it was dark at the time of the incident notwithstanding objective evidence that it was in fact dark at the time;
·     Mr Collin did not see the respondent's car skid and spin out of control; and
·     He did not know whether or not he had his headlights on notwithstanding that the incident occurred more than an hour after sunset and in winter (at [149]).

The primary judge concluded (at [150]), that "these matters and [Mr Collin's] non-observance of the Plaintiff's vehicle spin out of control necessarily impairs the reliability of his observations of the events in question, notwithstanding that I accept that he was doing his honest best to describe the events as he recalled them ... the evidence of Mr Collin does not assist me in determining the probable speed or lane of travel of the Plaintiff's vehicle".

3 Miss Cirino

The appellant also called Miss Cirino. The primary judge summarised her evidence as follows:

"63. In her evidence in chief Miss Cirino stated that she had finished her work at Chester Hill at 5.30 pm and was on her way home when the collision occurred. She nominated the time of the collision as being somewhere between 5.30 pm and 6.00 pm on the day in question. At the scene she was driving south in Stacey Street. She stated that she was in her vehicle travelling south in the kerbside lane at a speed that was just under the speed limit in readiness to make a left turn into a continuation of Stacey Street where it turned into Fairford Road.

64. Miss Cirino described her perception of becoming aware of a vehicle accelerating at a high speed in the lane closest to the median strip. She also stated that she was aware of hearing the revving of accelerating motors. From her use of the plural motors, I infer that apart from her own vehicle which was slowing down in readiness to turn left, there were two other vehicles in the vicinity.

65. In this context she identified what she described as the Plaintiff's small yellow vehicle, moving, as she said she saw it, from the lane adjacent to the median strip and across the other southbound lanes to appear and cross in front of her. She gave varying descriptions of the vehicle crossing at about a metre or so directly in front of her own vehicle in the kerbside lane. She stated that the speed of that vehicle was much faster than that of her own vehicle.

66. Miss Cirino described her observation of the yellow vehicle starting to skid from the third lane which was the one closest to the median strip and to then continue to skid to the left whilst crossing the middle and kerbside lanes and then skid into collision with a kerbside pole and then continue on into a forceful collision with a nearby fence. She stated that she then applied her brakes hard, stopped, called for an ambulance and then approached the Plaintiff's vehicle and rendered assistance."

The primary judge concluded for a number of reasons that he could not accept Miss Cirino's evidence as reliable. I will deal with those in detail in due course. However, in summary they were "the objective evidence ... that the skid marks left by the Plaintiff's vehicle commenced inside the middle southbound lane and not in the lane adjacent to the median strip" (at [67], [76]), what his Honour regarded as "differences in the content of her evidence given [in the Local Court proceedings] when that evidence is compared to the evidence that she gave at the hearing of these proceedings" (at [69]), including her different estimates of her speed (at [70] - [71]), her ability reliably to have observed the position of the respondent's vehicle behind her (at [73] - [74]), differences in her recollection of the other traffic in the vicinity (at [75]), her inability to "recall the colour of the vehicle that she saw in the lane closest to the median strip but saw the Plaintiff's yellow vehicle in collision with the pole" (at [78]) and her inability to recall that the angle at which the yellow car cut across in front of her was almost 90 degrees (at [78]).

Later in his reasons when he returned to the issue of Miss Cirino's reliability, the primary judge stated (at [152]) that the variances in Miss Cirino's estimates of her own speed led him "to the view that Miss Cirino's evidence as to speed estimates was based on guesswork rather than actual recollection."

His Honour also formed the view that Miss Cirino's evidence as to the respondent's speed was unreliable (at [156]). He noted Miss Cirino's evidence that she observed the respondent's vehicle accelerating behind and to her right. His Honour doubted her opportunity to make meaningful observations in circumstances where she claimed the respondent was travelling so fast, and was behind her (at [73] - [79]). His Honour regarded her evidence as containing a "good deal of confusion" (at [77]) and unreliable as to the respondent's speed (at [156] - [157]).

The primary judge rejected Miss Cirino's evidence that the respondent was travelling in the median lane. His Honour did so (at [160]) because of inconsistencies in her evidence as to her own speed and headlight illumination between the 2001 criminal trial and the 2008 civil hearing; her "inconsistent" observation of revving motors and screeching tyres from the same vehicle (see also [165]); her failure to describe the prevailing conditions as "dark" when it was in fact dark; and inconsistencies between her description of the state of the respondent's car after the accident and the photographic evidence.

In rejecting the accuracy of Miss Cirino's recollection, his Honour also placed reliance (at [161]) on the fact Miss Cirino was preparing to turn left at the time of the accident. He regarded it unlikely Miss Cirino would have had sufficient time or a proper vantage point from which to make reliable observations about the dynamics of the events leading to the collision (at [161]).

His Honour placed particular reliance (at [154] - [155]), however, on Miss Cirino's phrase in describing what she heard before the respondent's car came into view: "I could hear, like, the motors revving". He regarded Miss Cirino's use of the plural "motors" as indicating there were two southbound cars to her right. His Honour also considered Miss Cirino's evidence that she heard both the screeching of tyres and the revving of motors simultaneously as indicating two other vehicles were present (at [165]).

4 Expert evidence

The primary judge accepted that both expert witnesses, Mr Grant Johnston, retained by the respondent, and Mr Keramidas, held acknowledged expertise in the fields of engineering and crash analysis (at [80]). Both gave oral evidence. Mr Johnston prepared two reports, one of which was a comment on Mr Keramidas' report. All reports were tendered without objection.

Each expert's report was, as might be expected "to varying degrees, based on assumptions." His Honour thought it significant that "some of those assumptions did not feature in the evidence tendered by the parties at the trial" and concluded that "this influenced the probative value of the reports" (at [81]). He also held that the reports "have been affected by significant forensic difficulty which undermines the reliability of these opinions" (at [83]). Chief among his Honour's criticisms was the fact that both reports referred to background material which was not tendered which, in his Honour's view, raised "methodological questions as to the reliability of the expert evidence concerning the respective crash reconstruction analyses" and was "a factor which undermines the facility for transparent evaluation and therefore the assessment of the reliability of the reports" (see [84] - [87]). His Honour also said (at [87]) he had "ignored the references to the extraneous and unproven matters whether they have been stated to be assumptions or background material, such as for example, the speculative reference in both [Mr Johnston's and Mr Keramidas' reports] to the Plaintiff's speed in the lead up to the collision being in excess of 100 kph." In his view:

"...the fact that such unproven matters are embedded in the reports tendered reinforces my view that it is necessary to view these reports with great caution when trying to discern the factual bases upon which the authors have expressed their expert opinions."

The primary judge said that notwithstanding these difficulties he was required to engage with and analyse the expert evidence (at [88]).

Having considered aspects of Mr Johnston's reports he concluded that:

"114. The foregoing analysis reveals how inexact the science and process of crash reconstructions can be. This leads me to the view that, Mr Johnston's crash reconstruction analysis, although it represented a bona fide attempt at reconstruction based on very limited data, necessarily remains speculative in this case. I therefore consider it to be of very little probative value other than to provide a basis for confirming or not ruling out the feasibility of Mr Jaouhar's factual account of the events." (emphasis added)

His Honour then turned to Mr Keramidas' report, observing at the outset of this exercise (at [115]) that:

"...Mr Keramidas stated the following three conclusions concerning Mr Jaouhar's evidence:

'1. It is virtually impossible for the scenario outlined by Mr Jaouhar to have taken place, or to have caused the loss of control of the Plaintiff's Holden during this incident.

2. The estimated speed of the Holden at the start of the skidding was 62 to 67 km/h [assuming the braking was only available through the handbrake], or 78 to 83 km/h [assuming the foot brake was also activated and operational at that time]. If one were to accept that there was additional braking prior to the commencement of the skidding, then the approach speed of the vehicle must necessarily have been higher than the above estimates, and potentially much higher.

3. Having reviewed the report of Mr Johnston, there is nothing in that report which caused the author to alter his opinions regarding the incident circumstances.' "

His Honour continued:

"116. In my view there are a number of difficulties with the first of Mr Keramidas' speculative conclusions in that it is not apparent from the face of the report as to which of the two scenarios outlined by Mr Jaouhar was being considered by Mr Keramidas to be a virtual impossibility. Mr Keramidas had two scenarios available to him for his analysis. These were first, the short statement of Mr Jaouhar that was recorded in the notebook of Senior Constable Cassidy which is referred on page 12 of Exhibit '7' [Mr Keramidas' report] and secondly, the 16 point summary of the untendered evidence given by Mr Jaouhar in the Local Court proceedings as summarised by Mr Keramidas including the incorporation of some selected and incomplete quotes from the evidence given by Mr Jaouhar in the April 2001 Local Court proceedings, as was set out on pages 12 and 13 of exhibit '7'. In this regard:

(a) If the relevant scenario considered by Mr Keramidas is the one set out in short statement Mr Jaouhar gave to Senior Constable Cassidy then I would reject Mr Keramidas' first conclusion because I prefer the collision dynamics analysis as was explained by Mr Johnston wherein he agreed it was possible that rear wheel lock occurred due to handbrake application followed by sideways skidding into the pole. I would prefer this rational explanation rather than a blanket negation of Mr Johnston's description as being virtually impossible because Mr Johnston's description has a grounding in the facts described by Mr Jaouhar. I would also reject Mr Keramidas' first conclusion because it does not accord with my own view of the inherent plausibility of Mr Jaouhar's quoted statement as explained by Mr Johnston and which is inconsistent with Mr Keramidas' view that such a scenario was 'virtually impossible' to have taken place.

(b) If the relevant scenario considered by Mr Keramidas in support of his first conclusion was his 16 point summary of Mr Jaouhar's evidence given in the Local Court proceedings I would also reject that conclusion because the basis for it is not found in the evidence in these proceedings and it therefore remains opaque to analysis. This is so because the summary prepared by Mr Keramidas cannot be evaluated for accuracy, emphasis or appropriateness. This position arises because the Defendant elected not to tender the primary source for that summary, namely, the evidence given by Mr Jaouhar in the Local Court proceedings. In the absence of an agreement between the parties the summary cannot therefore be evaluated against the actual evidence given. I was not informed of any agreement of the parties to the effect that Mr Keramidas' summary of the evidence given in the Local Court proceedings by Mr Jaouhar was accurate. On the contrary, the summarised concession that Mr Jaouhar did not see the Plaintiff pull the handbrake - item 14 of Mr Keramidas' summary - is inconsistent with the evidence given by Mr Jaouhar to the effect that the Plaintiff used the handbrake. In these circumstances, absent the tender of the primary source, I am not prepared to accept a summary that is opaque to analysis: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

117. I am therefore left in the unsatisfactory position of having to speculate on the basis for the first conclusion in the report of Mr Keramidas. Further, the detail of Mr Keramidas' summary items 8, 9, 10 and 13 did not accord with the evidence which Mr Jaouhar gave in these proceedings. The Defendant did not seek to explore or reconcile the detail of these differences by cross-examining Mr Jaouhar on the areas of variance. In my view this state of the evidence results in an insurmountable forensic problem which precludes me from placing reliance upon or accepting the first conclusion in the report of Mr Keramidas.

118. In my view Mr Keramidas' second conclusion, which sums up his analysis of the braking dynamics and estimates of the speed of the Plaintiff's vehicle, is also of limited probative value. In my view this is so because the underpinning analysis for that conclusion is necessarily reliant upon his subjective and unexplained views as to the significance of selected aspects of the evidence given by Mr Jaouhar in the Local Court proceedings when the entirety of that evidence is unavailable for scrutiny in these proceedings. Although Mr Keramidas legitimately had that material before him when he prepared his opinion, the fact remains that this material was not tendered in these proceedings. The result is that Mr Keramidas' second conclusion remains opaque to analysis and I therefore reject it: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

119. Mr Keramidas' third conclusion simply expresses disagreement with Mr Johnston's opinion, and as such requires no further analysis.

120. Even though I formed the view that Mr Keramidas' second conclusion is opaque to analysis, before rejecting that conclusion I considered the appropriateness of reviewing Mr Keramidas' summary of Mr Jaouhar's evidence given in the Local Court against the fabric of the evidence given by Mr Jaouhar in these proceedings in order to determine whether the Defendant had established 'a fair climate for the views of expert witnesses' as explained in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 per Samuels JA at 509[G]. I have concluded that the task of comparing that summary with the evidence of Mr Jaouhar would be a fruitless exercise because the basis of the summary remains opaque to analysis. In my view this means that Mr Keramidas' opinion is in the same category.

121. As a consequence, the foregoing analysis leads me to reject the conclusions expressed in the report of Mr Keramidas: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705." (emphasis added)

His Honour considered (at [122]) that notwithstanding the view he had taken of Mr Keramidas' report, he had to consider and evaluate his oral evidence. The primary judge then undertook a critical analysis of Mr Keramidas' oral evidence. It will be necessary to return to his Honour's criticism in some detail. However at this stage a summary will suffice.

His Honour was critical of Mr Keramidas' oral evidence because:

(a) It was based on the theories he had outlined in his report, which, in turn, were based upon the assumptions he had made for the purpose of preparing his report and their opacity to analysis was not clarified by Mr Keramidas in his oral evidence (at [123], [130]);
(b) "For the purposes of estimating the speed of the Plaintiff's vehicle, Mr Keramidas assumed, in my view unwarrantedly, that the Plaintiff's vehicle only commenced to brake at the commencement of the skid marks ... as distinct from when the brakes were applied. The basis for making that assumption was not fully reflected in the evidence, and [made] no allowance for any retarding effects on speed due to an initial application of brakes before wheel locking and skidding commenced" (at [124]);

(c) There was an "apparent inconsistency in his opinions [as to where the respondent commenced to brake in light of the skid marks which] was not explained or reconciled" (at [125]);
(d) Mr Keramidas appeared to have invested the police sketch with a degree of accuracy beyond that which was intended to be represented in that diagram (at [126], [128] - [129]);
(e) "[L]ike Mr Johnston, he said the process by which he estimated the speed of the Plaintiff's vehicle prior to the collision was in turn based was [sic, on] his evaluation of the photographs showing the damage to the Plaintiff's vehicle. That is an inherently imprecise and necessarily limited basis for making estimates of speeds of the kind Mr Keramidas sought to make. This is so because I consider that the viewing of the photographs does not permit accurate measurements of the extent of the intrusion damage to the relevant areas. A commonsense analysis indicates that accurate measurements would be required for such a process to have any probative value" (at [127]);
(f) "The evidence of Mr Keramidas also relies upon an unexplained assumption arising from an interpretation of the photographic evidence of vehicular damage concerning the likely effect of contact between the Plaintiff's vehicle and the unidentified vehicle referred to by Mr Jaouhar. The unexplained assumption embedded within the question asked was 'what could be gleaned from the photographs of the Gemini'" (at [131]);
(g) Unlike Mr Johnston, he had not factored into his discussion a consideration of an array or range of possible mechanisms, including the possibility of a sudden and hard swerving or overcorrection manoeuvre of the Plaintiff's vehicle to the left intended to try and avoid a more serious collision with the unidentified vehicle and, accordingly, had not analysed the full range of the factors relevant to the analysis of the potential forces involved in the events in question (at [132] - [133]); and
(h) His evidence was "conjectural" because "he appears to have made no allowance for the retarding effect on the speed of the vehicle when the footbrake was applied [and] seems to have excluded this factor because of the lack of evidence of such braking. In my view such an analysis ignores the effect of Mr Jaouhar's evidence as for the application of the footbrake. It also ignores the evidence concerning the skid marks commencing in the middle lane" (at [135]).

The primary judge concluded:

"138. Having analysed both the report of Mr Keramidas and his oral evidence I conclude that his analysis is in large part conjectural and is necessarily reliant upon his summary of material that is not in evidence in the proceedings. In my view a significant part of it remains opaque to analysis and it therefore lacks probative value. Further, in my view Mr Keramidas has not sufficiently exposed his reasoning process to enable a proper evaluation of the opinions he has expressed concerning his analysis of the events of the collision. I have therefore come to the view that I cannot safely rely upon the opinions that Mr Keramidas has expressed both in his report and in his evidence, particularly his estimations of the speed and lane of travel of the Plaintiff's vehicle in the lead-up to the collision in this case.

Conclusions concerning the utility of the expert crash analysis evidence

139. Having had the advantage of hearing the factual evidence of the witnesses Mr Jaouhar, Mr Collin and Miss Cirino I believe it is possible to achieve a resolution of the conflicting factual evidence which was based on the perceptions and observations of these factual witnesses without the need to invoke and rely upon the speculative conclusions of the crash analysis experts.

140. I am reinforced in this view by the respective acknowledgments made by both Mr Keramidas and Mr Johnston to the effect that the discipline of crash reconstruction is an imperfect process with inherent margins of error. In my view the analysis of the expert opinion evidence in this case well demonstrates this to be so. When these concessions are viewed against the backdrop of the facts of this case, I find that in this case the expert crash analysis and reconstruction opinions are of extremely limited probative value and are therefore of doubtful guidance in resolving the liability issues to be decided."

The primary judge then considered each of the matters he had identified as liability issues. It will be necessary to undertake a detailed examination of his approach to these issues. It is sufficient at this stage to set out his Honour's conclusions, using his Honour's headings and trial nomenclature:

(a) Lane of travel and speed of the plaintiff's vehicle

His Honour found Mr Jaouhar's account of the events describing the respondent's speed and lane of travel to be reasonable and not internally inconsistent, preferring his evidence to that of Mr Collin and Miss Cirino (at [170]). He held:

"172. I find that in the lead up to the incident the Plaintiff's vehicle was being driven by him in the lane adjacent to the median strip until a point on Stacey Street just after a set of traffic lights situated about 300 metres to the north of the collision site when the Plaintiff changed his lane of travel to continue driving south in the middle lane of the three southbound lanes in Stacey Street. I find that this lane change occurred well before the scene of the collision and about 15 seconds prior to the collision.

173. I find that thereafter, the Plaintiff's vehicle was travelling at a speed of about but not in excess of 70 kph whilst travelling in the middle of three southbound lanes in Stacey Street. I find that such speed was not excessive for the prevailing traffic and road conditions in the circumstances. I find that during the course of such travel the Plaintiff's vehicle was travelling no faster than 70 kph and that such a speed was appropriate for the prevailing traffic and road conditions. I find that the Plaintiff continued to travel south in the middle lane at about 70 kph commensurate with the prevailing traffic conditions until the vehicle braked due to the occurrence of other events."

(b) Whether physical contact occurred between the plaintiff's vehicle and an unidentified vehicle

The primary judge accepted Mr Jaouhar's evidence that there was contact between the driver's side of the respondent's vehicle and an unidentified vehicle in the manner described by Mr Jaouhar (at [180]). He found:

"183. Following my review of the evidence I conclude that immediately before the collision the Plaintiff was driving in the middle lane of three southbound lanes in Stacey Street at a speed of 70 kph. I find that at that time there was some minor contact between the driver's side of the Plaintiff's vehicle and another vehicle which has not been identified and which had travelled from the southbound lane adjacent to the median strip and across the path of the Plaintiff's vehicle. I find that occurred whilst the Plaintiff's vehicle was in the middle of three southbound lanes in Stacey Street. The evidence does not permit me to determine with precision the force involved or the extent of such contact."

(c) Relevant events leading up to the collision with the power pole

His Honour found:

"185. The evidence of Mr Jaouhar was that the Plaintiff applied his brakes after contact between his own vehicle and an unidentified vehicle. The evidence of Miss Cirino was that she heard the screeching of tyres and skidding. The evidence of Senior Constable Cassidy was that he observed the presence of 23m of skid marks commencing in the middle lane and heading towards the pole with which the Plaintiff's vehicle ultimately collided. In my view, all of this evidence tends to confirm Mr Jaouhar's account of the events leading to the collision of the Plaintiff's vehicle with the power pole.

186. I therefore accept Mr Jaouhar's evidence describing these events. I find that when the unidentified vehicle appeared on the Plaintiff's right and then in front of the path of travel of the Plaintiff's vehicle suddenly and without prior indication or warning, in this sequence there was a minor impact with the driver's side of the Plaintiff's vehicle. I find that in his response, in rapid combination, the Plaintiff first applied the footbrake and then the handbrake. I find that in this process, on the balance of probabilities, the Plaintiff also swerved hard to the left to try and avoid a collision between his own vehicle and the unidentified vehicle which had by this time appeared in front of him after physical contact had occurred between these two vehicles in the manner described by Mr Jaouhar.

187. I find that in these events the rear wheels on the Plaintiff's vehicle locked which caused the Plaintiff's vehicle to spin anticlockwise in a trajectory to the left according to the mechanism that was explained by Mr Johnston. I find that in these events the vehicle skidded, as is evident from the skid marks that were observed on the roadway. I find that this skidding continued until the Plaintiff's vehicle collided with the power pole adjacent to the kerbside lane on the south-eastern side of Stacey Street and then deflected into a further collision with a fence."

(d) Was the driver of the unidentified vehicle negligent?

His Honour found:

"191. The negligence of the driver of the unidentified vehicle is plainly manifest in these circumstances. The vehicle was being driven in excess of the applicable speed limit of 70 kph which in itself amounts to negligence. The vehicle changed lanes suddenly and without indication or warning and in the process physical contact between the two vehicles occurred. In my view this contact also constitutes negligence. This situation created the risk that the Plaintiff's vehicle would collide with the rear of that unidentified vehicle if evasive action was not taken by the Plaintiff. These circumstances arose due to negligence on the part of the driver of the unidentified vehicle as this action required a sudden emergency response from the Plaintiff that created risks to road users, including to the Plaintiff himself.

192. In these circumstances and for the foregoing reasons I find that the driver of the unidentified motor vehicle was negligent and that such negligence was the cause of the Plaintiff's injuries."

(e) Was there contributory negligence on the plaintiff's part?

The primary judge rejected the appellant's submission that the respondent had been guilty of contributory negligence because of "the speed at which [he] was driving", his "alleged inappropriate application of the handbrake" and "the alleged factor of driver inexperience" (at [193]). He said:

"195. I have found that the Plaintiff was travelling at an appropriate speed for the prevailing road and traffic conditions and that he was driving within the applicable speed limit and within the marked middle southbound lane. The only factor that caused the Plaintiff's vehicle to change its course and to brake is what I have found to have been the sudden appearance of the unidentified motor vehicle as it appeared across the Plaintiff's path. In the process this caused some minor contact to occur between these two vehicles.

196. In my view the described circumstances created a situation of danger that required an immediate reaction on the part of the Plaintiff. This resulted in the Plaintiff in combination applying the foot brake, the handbrake and swerving his vehicle to the left. In these circumstances I have found that the driver of the unidentified motor vehicle was negligent and that such negligence was the cause of the collision between the Plaintiff's vehicle and the power pole.

197. In my view the Plaintiff's instinctive reaction to these circumstances was both reasonable and appropriate. He applied the footbrake which, on Mr Jaouhar's observation, did not appear to slow the vehicle, most probably because an insufficient period of time had elapsed for the Plaintiff's vehicle to appreciably slow down in juxtaposition with the lane changing manoeuvre that had occurred to his right and ahead of him. In my view what probably occurred next was that the Plaintiff then applied the handbrake hard as an emergency measure to slow his vehicle down as the vehicle which was by then in front had braked hard, as Mr Jaouhar described in his statement to the police. In the course of these events I find that the Plaintiff most probably also swerved his vehicle hard to the left either before, during or as a result of contact between the two vehicles and whilst this other vehicle was still in front of him. In my view it was this combination of events that most probably caused the Plaintiff's vehicle to spin and skid out of control.

198. I find that whilst this agony of the moment response by the Plaintiff was extreme, it was nevertheless undertaken reasonably in order to try and avoid a collision with the vehicle ahead in the unexpected circumstances that confronted the Plaintiff and which had been created by the driver of the unidentified vehicle who had overtaken, changed lanes and then applied the brakes hard which required the Plaintiff to react quickly. In my view this did not amount to contributory negligence on the Plaintiff's part as alleged by the Defendant.

199. There is no evidence that alleged driver inexperience on the Plaintiff's part was a causative factor in the events which led to the collision. The Plaintiff was a licensed driver. He was driving within the applicable speed limit. Whilst the application of the handbrake in the circumstances was not a commonplace manoeuvre it was, in my view, a desperate and reactive collision avoiding measure that was employed by the Plaintiff as a last resort to try and avoid a dangerous situation that had emerged and which was not of his own making. I do not consider that the Plaintiff's split-second decision to employ such an emergency evasive manoeuvre in an effort to avoid a collision could, in the circumstances be fairly characterised as amounting to contributory negligence on his part where the emergency was not caused by him. I therefore reject the Defendant's contributory negligence arguments."

Due inquiry and search

The primary judge rejected the appellant's contention that no due inquiry or search for the owner or driver of the unidentified motor vehicle had been undertaken in accordance with s 34 of the Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act". He assessed the issue in the light of the appellant's submission that the respondent had adduced no evidence of any inquiry or search. He noted it was necessary "to evaluate the scope for any inquiry and search to have produced results that were likely to have identified the vehicle in question" (at [202]).

The primary judge found (at [203], [212]) that no-one at the accident scene was able to make, or provide information in response to, inquiries regarding the identity of the unknown driver involved in the accident. In particular, his Honour found (at [203]) that Mr Jaouhar was dazed and in shock at the accident scene and so was unable to usefully make inquiries on the respondent's behalf at that time.

His Honour found that Mr Jaouhar had made it known to the police, at the scene, that another vehicle had been involved in the accident (at [203]) referring to the police notebook entry.

The police arrived promptly and investigated the circumstances of the accident. However, his Honour found (at [205]) Senior Constable Cassidy did not indicate he had identified any eyewitnesses (other than Mr Collin or Miss Cirino) for the purpose of making statements. His Honour observed (at [217]):

"It was their duty to try and ascertain the relevant events. The police investigation did not reveal the identity of the other vehicle notwithstanding that Mr Jaouhar's statement signalled that another vehicle was involved."

The respondent had apparently retained a solicitor relatively early in the case, but had fallen out with that person at some stage. A tax invoice setting out the solicitor's attendances was tendered. It showed consultations with Mr Jaouhar, perusing the police report and consulting counsel. The primary judge concluded (at [208]) there was nothing "within that limited narrative which would tend to suggest that it was possible to identify the vehicle in question."

In relation to an advertisement placed in the Bankstown local newspaper on 22 December 2004 by the respondent's next solicitor (as to which there was no evidence of any response), his Honour found (at [210]) that "it would seem unlikely that after over 4 years following the incident anyone would come forward ... and be able to provide material that would assist to identify the vehicle in question."

His Honour (at [213]) rejected the appellant's submission that residents living in the vicinity of the accident could have provided information, inferring it was doubtful such people would have had "anything useful to contribute" bearing in mind the accident occurred "[o]n a dark night in winter at an hour when nearby residents were probably returning from work or [making] an evening meal".

His Honour concluded:

"217. I am satisfied that in the circumstances of this case due inquiry and search would not have established the identity of the vehicle that was involved in the incident. I have come to this view because, realistically, the police arrived at the scene promptly to investigate the circumstances whilst other witnesses were still at the scene. It was their duty to try and ascertain the relevant events. The police investigation did not reveal the identity of the other vehicle notwithstanding that Mr Jaouhar's statement signalled that another vehicle was involved. This may have been due to limited police resources, pre-occupation with ensuring the Plaintiff received help and clearing the road in peak hour traffic and a limited opportunity to further interview and a limited Mr Jaouhar who was injured and dazed at the time.

218. Even if Mr Jaouhar had been able to provide a more coherent and detailed statement at the time there is no reason to believe that inquiries would have revealed the identity of the unknown vehicle. I am satisfied that once the police and the witnesses Mr Jaouhar, Mr Collin and Miss Cirino had left the scene the trail to be followed to attempt to find the other vehicle was well and truly cold. I am satisfied that by the time this claim on behalf of the Plaintiff was first contemplated, any attempt at due inquiry and search was destined to be futile. In these circumstances I am satisfied that the Plaintiff has fulfilled the requirements of s 34(1) of the Motor Accidents Compensation Act 1999 concerning due inquiry and search."

Damages

It is necessary to deal only briefly with one issue of damages having regard to the primary challenge to the liability finding.

The primary judge recorded (at [578]) that the respondent claimed the value of the assistance of a person:

"'to organise his life on a daily basis providing lists and checking up on tasks that the Plaintiff was required to carry out' for an estimated 1 hour per day. The Plaintiff claims the commercial cost of such services at $35 per hour for the remainder of his life."

The primary judge regarded this hourly rate as reasonable (at [578]).

He awarded the respondent $20,846 for past domestic care services and $247,278 for future domestic care services (at [577] and [583] respectively).

It is convenient to record the essence of the parties' submissions about this head of damages.

The appellant complains the award as to past domestic care services ignored the respondent's own evidence as to his need for assistance. As to future domestic care, the appellant complains the primary judge allowed a larger sum than was warranted by his findings to the effect that the respondent had no need for care after February 2001, and further that his Honour awarded a higher (commercial) hourly rate than the gratuitous rate sought by the respondent.

The passage of Mr Keramidas' evidence his Honour extracted (and rejected) was given during his evidence-in-chief, when as is apparent, counsel for the appellant asked him to address the core hypothesis of the respondent's case. The appellant submits the primary judge's criticism that Mr Keramidas made no attempt to clarify what could be "gleaned" from the photographs is unfair. The respondent did not cross-examine Mr Keramidas on this basis or put any submission to this effect.

The appellant also submits his Honour's criticism is inaccurate as Mr Keramidas set out in his report (at 9) the assumptions he made based on the photographs:

"The assistance which the photographs did provide was as follows:

1. The vehicle at rest appears to have experienced significant intrusion in the area of the vehicle's 'A' pillar, at least to the extent of 300 to 400 mm.

2. The vehicle's bonnet has been displaced and is sitting across the vehicle facing towards the off-side.

3. The driver's door has 'sprung' and is distorted both longitudinally and vertically.

4. The forward section of the vehicle, including the forward section of the passenger cell, has become separated (split) from the rear of the vehicle in the vicinity of the 'B' pillar, with the rear of the vehicle apparently sitting at an angle relative to the front.

5. It also appears that certain tyre marks may have been attempted to be captured in two of the photographs, however due to the image quality the actual marks are not discernible."

I would add to these references, the fact that elsewhere in his report, Mr Keramidas opined that for the version of events to which Mr Jaouhar deposed at the Local Court to have occurred, the respondent's vehicle would have to have exhibited "significant contact damage sufficient to cause the vehicle to be 'pushed' to the left." He concluded from his examination of the photographs that there was no evidence of such contact on the respondent's vehicle. He was not directly challenged on this evidence in cross-examination, although he did accept that "to some extent", the position of the bumper bar after the accident, and its collision with the street pole, may have eliminated "any evidence of such contact".

In my view these references make it apparent that the primary judge's criticism of Mr Keramidas' reliance on the photographs was unwarranted. Mr Keramidas' report sought to explain what the photographs did reveal, as well as why what he observed was inconsistent with the respondent's case. It was necessary for the primary judge to evaluate Mr Keramidas' opinion in the light of that evidence. Clearly, one factor relevant to his evaluation of that evidence was that, save to the extent to which I have referred, the respondent's counsel did not challenge his evidence concerning the photographs.

D5. Failure to consider a range of possible "mechanisms"

Having criticised Mr Keramidas (at [131]) his Honour continued (at [132]):

"It seems to me that an obvious problem emerges from the foregoing analysis by Mr Keramidas in that unlike Mr Johnston, he has not factored into his discussion a consideration of an array or range of possible mechanisms, including the possibility of a sudden and hard swerving or overcorrection manoeuvre of the Plaintiff's vehicle to the left intended to try and avoid a more serious collision with the unidentified vehicle. He ultimately acknowledged the possible relevance of such a scenario..."

The appellant submits this passage is neither fair nor accurate and points out that the respondent made no submission to like effect. The appellant also points out that when regard is had to Mr Keramidas' evidence, it is apparent that he considered a range of scenarios in relation to vehicle speed, trajectory and loss of control. The alternate scenarios Mr Keramidas addressed himself to as regards speed (Keramidas' Report at 24) are set out above (at [268]).

Insofar as "trajectory" is concerned, Mr Keramidas' report dealt with three different scenarios (at 24):

"The movement of the vehicle towards the south-east and its apparent rotation in a clockwise direction during the skidding process indicates that the vehicle's pre-skidding trajectory was also towards the south-east. There are a number of possibilities which could explain a pre-skidding trajectory of this type, including:

1. The vehicle travelling in a tangent to the right-hand bend.

2. The vehicle having been impacted on the right-hand side in order to redirect its motion to the south-east.

3. The vehicle being in the process of completing a lane change manoeuvre at the point in time when brakes were applied."

Each of these possibilities was then addressed (at 24 - 25).

Mr Keramidas' report deals with a number of possible causes of the respondent's loss of control over his vehicle (at 25 - 26). He assessed Mr Jaouhar's explanation for that loss of control (at 24), as well as the possibility the respondent's application of the handbrake was the causative event (at 25). Mr Keramidas also considered the scenarios Mr Johnston put forward (at 27 - 32).

The appellant gave three references to Mr Keramidas' report to support the proposition that Mr Keramidas addressed the example given by his Honour (at [132]), (repeated at [133]) of a mechanism Mr Keramidas failed to consider, namely "a sudden and hard swerving or overcorrection manoeuvre of the Plaintiff's vehicle to the left intended to try and avoid a more serious collision".

The first (at 25) is to a paragraph, under the heading "The Likely Vehicle Trajectory", dealing with:

"... [a] scenario involv[ing] the redirection of the vehicle through steering in the form of a lane change manoeuvre, with significant application of brakes prior to the vehicle completing that manoeuvre and continuing a right steer condition to follow the bend [of Stacey Street]."

During oral submissions, Mr Watson submitted Mr Keramidas also dealt with the overcorrection/reactive swerve thesis when dealing with a "...scenario involv[ing] contact on the off-side of the Holden in order to produce a redirection of the vehicle to the south-east."

The second reference is to a section in Mr Keramidas's report headed "Involvement Of An Unidentified Vehicle And Likely Cause Of Loss Of Control" (at 25). In this section Mr Keramidas deals with the version of events provided by Mr Jaouhar at the Local Court hearing which, according to Mr Keramidas' summary (at 12 - 13), did not include evidence to the effect that the respondent swerved suddenly or forcefully.

The third reference is to Mr Keramidas's discussion of Mr Johnston's 2007 report; in particular, the segment of Mr Johnston's report entitled "Initiation of Loss of Control" (at par 5.20-5.30. Mr Keramidas makes the following comment (at 30):

"Mr Johnston does however consider that a combination of a contact and evasive steer or corrective steer could have occurred as described by the Plaintiff's passenger. The present author disagrees entirely with this proposition for the reasons outlined earlier".

Mr Keramidas then reiterated his reasons for rejecting the proposition that there was contact between the respondent's car and another vehicle.

In my view the appellant's complaints about the primary judge's criticism of Mr Keramidas as having failed to consider a range of possible mechanisms is well founded.

D6. Failure to consider evidence supportive of appellant's case

Finally, the appellant contended that the primary judge failed to mention two key parts of Mr Keramidas's evidence. First, that the trajectory of the respondent's vehicle meant he had to have been travelling in the median lane prior to the accident, and secondly, that if an unidentified vehicle did nudge the respondent's car, that collision would have caused the unidentified car to spin out of control as well as the respondent's vehicle.

(i) Lane of travel

Mr Keramidas' report stated:

"[I]t is evident that the trajectory of the [plaintiff's] vehicle was such that it was travelling from Lane 3 across to Lane 2 when braking was applied, thereby eliminating the prospect of a vehicle overtaking on the right side."

This evidence was confirmed in Mr Keramidas' evidence in chief:

"Q. ... There has been evidence in this case which suggests that the Gemini at the time that control was lost was travelling in the middle of the three lanes along Stacey Street. Do you have a view about that?

A. I think as I've indicated in my report, the position of the tyre marks which I've assumed to be in about the centre of that centre lane is such that the vehicle can't have originally been travelling in that lane or within that position. The reason being that - you could certainly, if you were to - have been travelling in the centre lane and heavily applied the handbrake, you would certainly be in a position to leave marks from that point. However, that spinning motion ... would basically take you in a direct line of path towards the lights. Once the wheels are locked, then - those rear wheels are locked, you're not going to be able to create a redirection on the vehicle. So it's got to already be effectively heading towards the left-hand side of the roadway when those wheels are locked and it starts spinning.

...

Q. I want to add to your considerations a further factual assumption. I wish you to assume that...Constable Cassidy...looked at his diagram and he told us that he attempted accurately to portray where the skid mark commenced and when he was asked about how close the skid marks commenced relative to the painted lane divider between lane 3 or the median strip lane and the lane 2, he said that those marks commenced close to that point and when pressed he gave an estimate of one metre. Does that help you at all?

A. One metre?

Q. From the painted lane divider between lane 3 and lane 2, lane 3 being the one adjacent to the median strip.

A. Yes. It certainly strengthens the hypothesis that I've put forward. In order for those tyre marks to start, then effectively two-thirds of the way through the centre line, taking the kerbside as our reference, in order for that to occur and the vehicle to have this trajectory off to the left, then it indicates that the vehicle has started from lane 3. There has been a steering manoeuvre put in place - I can't tell you whether there's braking or not at that point - and then there has been braking including the full application of the handbrake to induce rotation.

HIS HONOUR

Q. Is that last answer of yours dependent on the speed of reaction time for applying the brakes?

A. It actually - your Honour, not in terms of a reaction time for applying the brakes. What it indicates is that the brake application has occurred, at least in terms of the handbrake, a small fraction of a second after the steering input. If the steering input had been allowed to operate for a significant period of time, then effectively the commencement of the tyre marks would be further away from this lane separation marker and the attitude of the vehicle would be more side-on to begin with ..." (emphasis added)

The appellant submits, without contradiction by the respondent, that the only cross-examination about this issue was as follows:

"Q. ...[Y]ou are aware of the fact that even on the very night in question Mr Jaouhar maintains they were in the middle lane of the road...

A. That's right, yes.

[Mr Keramidas was then asked to ignore the shorter tyre mark in the police sketch, which ends at the pole, as either inaccurate or unrelated to the accident.]

...

Q. ...[I]f you've only got one tyre making that [longer] skid mark there are a number of other factors then that come into play, for example, the car could have been in the middle lane and bumped by a passing car - assume it, however, to have been bumped near the front wheel arch. That could have happened to cause that trajectory, could it not?

A. The trajectory - yeah, you could certainly cause a deflection providing the bump was severe enough, yes, you could certainly cause that angle of trajectory. I certainly would have expected to see something in terms of a tyre mark during the deflection but not necessarily after it then proceeds from the deflection. So that initial hit I'd expect-

Q. The initial hit might deflect the car and the driver might then apply the service brake, find it's not working properly and then pull on the handbrake which wasn't adjusted, well the rear drum was not sufficiently adjusted to allow for it, and generate a skid in that direction from the centre lane through to where it appears near the vehicle at rest in the diagram.

A. The trajectory could certainly - you could generate that. I don't believe there's the damage on the vehicle but you can generate that trajectory. Subsequent to that where the service brake is applied, or the handbrake is applied, something has occurred to cause that rear offside to - to lock.

Q. But I'm more concentrating on the position of the vehicle at the onset of all of this. It's entirely consistent with the vehicle being in the middle lane and that scenario occurring, isn't it?

A. It could be providing the deflection was to about 20 degrees. That has to be a decent hit.

Q. Or alternatively in addition to the deflection the driver turning the wheel to avoid contact with the vehicle crossing in front of him.

A. Look, steering action is what I think has happened. Whether that's to avoid something I can't say.

Q. But whatever the initiating cause of the deflection, being a nudge where I suggest that it might have occurred, a sudden turn to the left and then the application of the handbrake incorrectly operating only on one drum because the drum is not adjusted properly, that could have occurred from the vehicle being in the middle lane.

A. If it was - if it was a nudge that caused the deflection I agree with you. If it's a steering action the vehicle will need time and space to go from straight ahead to left and it can't do that instantaneously. It would need to have been hit. If it's a steering action of an avoidance manoeuvre then it's effectively going to follow a curved path until that wheel locks. So in my opinion it can't have happened from within the centre lane. It has to be within the right lane, within lane 3.

...

HIS HONOUR

Q. ...[H]ow is that affected if one assumes that the deflection was caused by a combination of steering response and nudge together?

A. Technically, your Honour, it would depend on how much...the nudge contributed and how much the steering contributed. The nudge would be virtually instantaneous. It would be some small fraction of a second. The steering response would take longer.

Q. There could be another possibility. There could be an apprehension that the nudge was about to occur and then a steering response to try to avoid it.

A. Correct. In that situation then we're talking about lane 3 because anything that will require the vehicle to turn of its own accord to achieve that angle is going to require more than a metre or so of - of motion assuming that this tyre skid mark commences about a metre from the lane separation. So in that situation it would need to be nudged to position the vehicle in lane 2 ... [I]f it's a predominantly steering based response [it] would need to have been from lane 3 in order to get to 20 degrees unless it was travelling very slowly...at 20, 30 kilometres an hour you could certainly generate a 20 degree motion over one metre of lateral distance as you're moving the car." (emphasis added)

The appellant submitted ultimately that he did not understand this cross-examination to have directly challenged or explained that the skid marks did not mean that the car could not have been in lane number two. The respondent did not suggest otherwise.

It is not entirely apparent that the primary judge failed to refer to this evidence, at least insofar as Mr Keramidas' last answer to the cross-examiner in the passage extracted (at [301]) is concerned. It appears to be reflected in his Honour's statement (at [136]) that this evidence was contrary to Mr Johnston's. However his Honour criticised (at [136]) Mr Keramidas' view because "[o]mitted from his analysis was a discussion [of] a combination of an evasive steer, possibly in anticipation of contact with the unidentified vehicle, including the potential forces involved in such an analysis." In fact such a scenario was put to Mr Keramidas by the cross-examiner and dealt with by him. As earlier pointed out (at [295]), Mr Keramidas also referred to, and rejected, Mr Johnston's "evasive steer" hypothesis.

(ii) Spin out of unidentified vehicle

The appellant also drew attention to the following passage of Mr Keramidas' evidence-in-chief which he said was unchallenged yet was not addressed by the primary judge:

"Q. Mr Keramidas, what would happen to the...vehicle which struck the Gemini?

A. Now if the - if the two vehicles hit each other flush then effectively they have the potential to engage and so they should be full length scraping contact. If there's a slight angle variation - say, if the striking vehicle's coming into the position of the - of the Gemini, then essentially what would happen is there would be retardation or an interaction between the front passenger side of the striking vehicle and the driver's side of the struck vehicle, which - if it's enough to deflect the Gemini, it would cause a rotation on the striking vehicle. So it would spin out effectively."

However, the respondent submitted that the primary judge put paid to this theory when, after Mr Keramidas gave this evidence, his Honour asked him whether the other vehicle could have gone straight ahead if the driver had undertaken "a steering response" to which Mr Keramidas replied:

"If he caught it quickly enough, potentially yes."

Mr Keramidas: conclusion

There is no doubt Mr Keramidas' evidence about the trajectory of the respondent's vehicle and the probable effect of any collision on the unidentified vehicle were significant to the appellant's case. The primary judge dealt with neither.

Both aspects of Mr Keramidas' evidence were specifically drawn to the primary judge's attention in the appellant's oral and written submissions and were not criticised by the respondent. In so saying I do not suggest his Honour was obliged to accept Mr Keramidas' evidence in this respect. The parties were clearly at issue as to which expert's opinion was to be preferred. His Honour was obliged to subject the evidence of both expert witnesses to rational analysis: Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127. That included assessing matters clearly critical to each party's cases. His Honour's failure to consider these two important matters of Mr Keramidas' evidence constituted, in my view, an error in the fact-finding process.

Each piece of evidence could have had a material effect on the outcome as each, if accepted, was probative of the appellant's case. The primary judge's failure to consider them supports the appellant's argument that there has been a substantial miscarriage of justice.

The primary judge's analysis of Mr Keramidas' written and oral evidence led him to conclude that:

"138. Having analysed both the report of Mr Keramidas and his oral evidence I conclude that his analysis is in large part conjectural and is necessarily reliant upon his summary of material that is not in evidence in the proceedings. In my view a significant part of it remains opaque to analysis and it therefore lacks probative value. Further, in my view Mr Keramidas has not sufficiently exposed his reasoning process to enable a proper evaluation of the opinions he has expressed concerning his analysis of the events of the collision. I have therefore come to the view that I cannot safely rely upon the opinions that Mr Keramidas has expressed both in his report and in his evidence, particularly his estimations of the speed and lane of travel of the Plaintiff's vehicle in the lead-up to the collision in this case.

Conclusions concerning the utility of the expert crash analysis evidence

139. Having had the advantage of hearing the factual evidence of the witnesses Mr Jaouhar, Mr Collin and Miss Cirino I believe it is possible to achieve a resolution of the conflicting factual evidence which was based on the perceptions and observations of these factual witnesses without the need to invoke and rely upon the speculative conclusions of the crash analysis experts.

140. I am reinforced in this view by the respective acknowledgments made by both Mr Keramidas and Mr Johnston to the effect that the discipline of crash reconstruction is an imperfect process with inherent margins of error. In my view the analysis of the expert opinion evidence in this case well demonstrates this to be so. When these concessions are viewed against the backdrop of the facts of this case, I find that in this case the expert crash analysis and reconstruction opinions are of extremely limited probative value and are therefore of doubtful guidance in resolving the liability issues to be decided."

In my view the foregoing analysis makes it apparent that his Honour rejected Mr Keramidas' evidence in circumstances where the respondent had not raised the criticisms his Honour identified whether in cross-examination or in submissions and without giving the appellant the opportunity to deal with his criticisms, almost all of which were without foundation. This was a denial of procedural fairness and a significant flaw in the primary judge's fact-finding.

In addition, his Honour's failure fully to consider Mr Keramidas' evidence, in my view, amounted to error in fact-finding.

CONCLUSION

The appellant has made good its complaint that in critical areas the primary judge reached conclusions adverse to its case in circumstances which amount to a denial of procedural fairness. The primary judge determined the case substantially on points not raised by the respondent and not raised by his Honour during the course of the trial.

As will be apparent, not all of the matters that the primary judge found adversely to the appellant were a surprise to it. The respondent had, for example, submitted that Miss Cirino's evidence was contradictory and should not be accepted. However, in a number of areas of significance the primary judge's fact-finding was unsound. For example, when properly analysed it is apparent that the criticisms of Miss Cirino's evidence which led to his Honour rejecting her evidence as unreliable were not well based. Similarly the proposition that Mr Collin's two flash evidence demonstrated there were two vehicles was raised in the course of submissions. In response the appellant invited his Honour to assess it in the light of Mr Collin's evidence as a whole, as well as that of Miss Cirino and Mr Keramidas. His Honour's rejection of all but that piece of Mr Collin's evidence as unreliable was also for the reasons I have given, flawed. Indeed, it is notable that the primary judge assessed the two lay witness's evidence in isolation, without considering whether, taken as a whole, their evidence of what they saw/heard supported the appellant's case.

The primary judge's approach deprived the appellant of a fair trial and his fact-finding miscarried. The appellant had an arguable case based on its lay and expert evidence that the respondent's version of events should not be accepted. The primary judge's approach to analysing that case and errors in doing so deprived it of the possibility of a successful outcome amounting to a substantial miscarriage of justice.

The notice of appeal sought either a verdict or a new trial. It is not, in my view, open to this Court to enter a verdict in the appellant's favour. It has not seen the witnesses. The respondent's case at trial, particularly insofar as Miss Cirino was concerned, depended on assertions as to the contradictory nature of her evidence. In this Court he asserted his Honour was entitled to reject her evidence for these reasons and because she was "adversarial" and "defensive". Whether or not she was, and assuming those characteristics if perceived were not a justifiable human reaction to hostile questioning rather than redounding on her credibility, cannot be determined by this Court. There must be a new trial.

In such circumstances I do not think it is necessary to consider the appellant's other complaints, applying in this respect what has been referred to as the "principle of parsimony": Rebenta Pty Ltd v Wise [2009] NSWCA 212 (at [9] - [12]) per Basten JA (Ipp JA and Sackville AJA agreeing); Shimokawa (at [195] - [196]) per Giles JA (Beazley and Ipp JJA agreeing). Moreover, it would not be appropriate to express opinions about issues which as the outline of the parties' submissions on these issues I have outlined (at [113] - [116]) makes clear would turn on the view of the evidence taken by the next trial judge.

The only matter about which I would make comment is the appellant's complaint about the primary judge's use of the figure of $35 as an hourly rate for future attendant care services. The respondent's counsel had, in my view, abandoned that figure and accepted the appellant's submission that any such damages should be awarded at $22 per hour. To use the higher figure in these circumstances was another denial of procedural fairness: Seltsam (at [77] - [79]).

ORDERS

In the light of the fact that there must be a new trial the costs judgment must be set aside and the costs of the first trial must, as is the practice, abide the outcome of the second.

I propose the following orders -

1. Appeal allowed.
2. Set aside the verdict and judgment for the respondent of $1,333,398 and the order that the appellant pay the respondent's costs.
3. Remit the proceedings to the District Court for a new trial on all issues.
4. Costs of the first trial to be at the disposal of the judge conducting the new trial.
5. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

Schedule

Sixteen point summary schedule

Keramidas Report	Appellant’s submissions (unless otherwise indicated)	Evidence before primary judge	Findings of primary judge
1	They were driving down Stacey Street and it was quite dark.	Common ground	“There is no dispute that in the lead up to the collision the Plaintiff was driving… in a southerly direction in Stacey Street” (at [4]); and “it was already completely dark” at [30].
2	There was a great deal of traffic and the traffic was moving slowly.	As per the evidence given by Mr Jaouhar below.	“Q. On the evening of the accident how would you describe the traffic around you? A. I didn’t look around me I just – to me the traffic was – was moving – flowing through.” [Black 155I]	[While the primary judge refers to “prevailing traffic conditions” (at [173], [195]), his Honour does not make an explicit finding as to what those conditions were.]
3	He then indicated the following with respect to his observations: ‘Well, as we were driving home on Stacey Street a little Swift, Barina, purpley bluey colour with black tinted windows was flying past, just flew past us, then it slowed back down. What he was trying to do, go onto, go to the far left side to –’	As per the evidence given by Mr Jaouhar below.	“Q. — did something happen? A. Yeah, while we moved into lane 2, that’s the middle lane, a car flew right past us in lane 1 next to the median strip. … Q. …When you say flew— A. Yep, he drove at high speed past us. Q. Do you recall the vehicle now? A. The description of the vehicle? Q. Yes. A. I’ll say it was a dark colour. Q. Did you know the make? A. It would be probably a little Swift or a Barina looking thing. Q. When you say it was a dark colour— A. Yep. Q. —what colour? A. Would it like – purpley colour, orangey, almond. … Q. Which lane was the dark-colo75ured car in? A. Lane 1, that’s the median strip. Q. The vehicle in lane 1, what did it do then? A. Where point of view it slowed down probably a— … Q. Well, you said the vehicle slowed down. What did it do then? A. It just – it crossed us.” [Black 155N-156N]	“I have found that [unidentified] vehicle had travelled from the Plaintiff’s right and from the lane adjacent to the median strip … I find that the unidentified vehicle was being driven at an excessive speed” (at [188]).
4	Mr Jaouhar indicated that at the time the Plaintiff’s vehicle was in the middle lane, having originally being travelling in what he described as the lane ‘on the far left side’.	The only important part of this is the evidence the plaintiff was travelling in the middle lane, which was reproduced in Mr Jaouhar’s evidence below. [t/s 34.46]	“Q. Up until the time of the accident, which lane were you in? A. Lane 2. Q. Being the middle lane? A. That’s right.” [Black 155F]	“[T]he Plaintiff changed his lane of travel to continue driving south in the middle lane of the three southbound lanes in Stacey Street. I find that this lane change occurred well before the scene of the collision and about 15 seconds prior to the collision” (at [172])
5	Mr Jaouhar indicated to the Prosecutor’s questions that they were in the right-hand lane from the set of lights, and that they then moved to the left, being the middle lane, and that’s when the incident occurred.	As per the evidence given by Mr Jaouhar below. [t/s 34.47]	“Q. —did you continue in that lane closest to the median strip? A. Sorry, can you repeat that again, please. Q. As you went down Stacey Street— A. Yes. Q. —continued down, did you remain up until the time of the accident— A. Yep. Q. — in that lane? A. No. … Q. [HIS HONOUR] Did you move before or after the set of lights? A. After it. … Q. [JOBSON] And which lane did you move to? A. Moved to the middle lane. Q. Up until the time of the accident, which lane were you in? A. Lane 2.” [Black 154L-155F]	“I find that in the lead up to the incident the Plaintiff’s vehicle was being driven by him in the lane adjacent to the median strip until a point on Stacey Street just after a set of traffic lights situated about 300 metres to the north of the collision site when the Plaintiff changed his lane of travel to continue driving south in the middle lane of the three southbound lanes in Stacey Street. I find that this lane change occurred well before the scene of the collision and about 15 seconds prior to the collision” (at [172])
6	The vehicle did not indicate at all as it changed lanes, effectively cutting in front of them.	As per the evidence given by Mr Jaouhar below. [t/s 34.47]	“Q. Before it crossed you did you notice anything? A. No. Q. Was there a blinker on? A. Nothing.” [Black 156O]	“[T]he unidentified vehicle appeared on the Plaintiff’s right and then in front of the path of travel of the Plaintiff’s vehicle suddenly and without prior indication or warning” (at [186]).
7	As the vehicle cut across it ‘clipped’ the side.	Other than the use of the word “clipped” instead of “nudged”, this evidence is consistent with that given below. [t/s 34.47]	“Q. Apart from seeing anything, did you feel anything? A. A bit of a nudge.” [ Black 156U]	“[In] the events leading to the collision there was contact between the driver’s side of the Plaintiff’s vehicle and an unidentified vehicle” (at [182])
8	The vehicle was either a Swift or a Barina. The vehicle was also described as having black tinted windows.	The evidence as to make is consistent with that given below; [t/s 34.48] the window tinting does not matter. [t/s34.44]	“Q. Did you know the make? A. It would be probably a little Swift or a Barina looking thing.”[Black 155V]	[The primary judge did not make any findings as to the characteristics of the unidentified vehicle.]
9	When asked what made Mr Jaouhar believe that this vehicle may have clipped the Plaintiff’s car, he indicated; ‘When he went in front – the car just moved a bit but he slammed the brakes hard.’ … ‘Like when he went in front of us, he went close. I felt a little push on the side and then he slammed hard, the brakes hard in front of us.’	As per the evidence given by Mr Jaouhar below. [t/s 34.49]	“Q. Apart from seeing anything, did you feel anything? A. A bit of a nudge. Q. When you say a bit of a nudge, did you feel where it was – which part of the car was nudged? A. On the driver’s side. Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control. Q. Where was this other car when Khodr applied the brakes? A. In front of us.”[Black 156U-157D]	“[T]he unidentified vehicle appeared on the Plaintiff’s right and then in front of the path of travel of the Plaintiff’s vehicle suddenly and without prior indication or warning” (at [186]).
10	Later Mr Jaouhar further indicated; ‘He’s clipped – he’s hit – I’m sayin’ I think he’s hit the front and he was in front right behind – we were right behind him, so we’ve slammed the brakes hard.’	As per the evidence given by Mr Jaouhar below. [t/s 34.49] The respondent: Para 10 does not accord with Mr Jaouhar’s evidence of a “nudge” [t/s 58.11]	“Q. When you say a bit of a nudge, did you feel where it was – which part of the car was nudged? A. On the driver’s side. Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control. Q. Where was this other car when Khodr applied the brakes? A. In front of us.”[Black 156V-157D]	“[T]here was a minor impact with the driver’s side of the Plaintiff’s vehicle. I find that in his response, in rapid combination, the Plaintiff first applied the footbrake and then the handbrake” (at [186]).
11	After contact, Mr Jaouhar indicated that the Plaintiff ‘slammed the brakes and the hand brake.’	As per the evidence given by Mr Jaouhar below.[t/s 34.49]	“Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control.”[Black 157A]	“There was a minor impact with the driver’s side of the Plaintiff’s vehicle. I find that in his response, in rapid combination, the Plaintiff first applied the footbrake and then the handbrake” (at [186]).
12	He also indicated that when the Plaintiff slammed the brakes on that ‘nothing happened really then he used the hand brake’, in effect indicating that the Plaintiff had applied both brakes.	As per the evidence given by Mr Jaouhar below.[t/s 34.49]	“Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control.” [Black 157A]	“He applied the footbrake which, on Mr Jaouhar’s observation, did not appear to slow the vehicle, most probably because an insufficient period of time had elapsed for the Plaintiff’s vehicle to appreciably slow down in juxtaposition with the lane changing manoeuvre that had occurred to his right and ahead of him. In my view what probably occurred next was that the Plaintiff then applied the handbrake hard as an emergency measure to slow his vehicle down as the vehicle which was by then in front had braked hard, as Mr Jaouhar described in his statement to the police.” (at [197]).
13	Mr Jaouhar indicated that as a result of the foot brake being applied, the vehicle started to slide sideways so that it ended up side on to the pole.	As per the evidence given by Mr Jaouhar below. [t/s 34.49]	“Q. After he put the brakes on? A. After he applied the brakes...(not transcribable) ... just lost control. Q. And what did the car do? What did it do? A. What on the accident? Q. Mm. A. I wouldn’t know? Q. Well did it stop? Did it continue or— A. No it didn’t. No it never stopped. Q. Well how did it go? Did it go – where did it go? A. What when the car’s cut us across, Khodr applied his brakes and the car lost control out of that. That’s all I remember. Q. Do you remember it striking the telegraph pole? A. No after I’ve come out of hospital and got myself straight up a bit. Q. You saw – when you got out of the car did you see where the car was? A. Yes. … Q. And did you observe that it had struck a pole? A. At that time I didn’t know that.” [Black 159U-160J]	“…the Plaintiff first heavily applied his footbrake followed by a strong application of the hand brake, probably whilst also swerving to the left …in the course of this manoeuvre the Plaintiff’s vehicle skidded and spun out of control…” (at [15] – [16]) “The rear wheels on the Plaintiff’s vehicle locked which caused the Plaintiff’s vehicle to spin anticlockwise in a trajectory to the left … the vehicle skidded … this skidding continued until the Plaintiff’s vehicle collided with the power pole adjacent to the kerbside lane” (at [187]).
14	Mr Jaouhar also conceded that he did not see the witness pull the handbrake.	Does not matter.
15	He further indicated that it was his belief that had the Plaintiff not slammed the brakes on their vehicle would have collided with the vehicle in front.	As per the evidence given by Mr Jaouhar below. [t/s 34.50]	“Q. How close was it to the front of Khodr’s car? A. Without applying the brakes we would have run into them – could have been that close.”[Black 157G]	“This situation created the risk that the Plaintiff’s vehicle would collide with the rear of that unidentified vehicle if evasive action was not taken by the Plaintiff.” (at [191])
16	After impacting with the pole, the vehicle was described as having carried on and hit a fence.	Common ground. [t/s 35.5]	“There is no dispute that…his vehicle skidded to the left across the south bound lanes of the roadway to his left and into collision with a kerbside power pole on the south-eastern side of the roadway and then into a subsequent collision with a nearby fence.” (at [4])

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Case Title:	Nominal Defendant v Saleh
Medium Neutral Citation:	[2011] NSWCA 16
Hearing Date(s):	24 February 2010
Decision Date:	17 February 2011
Jurisdiction:
Before:	Beazley JA [1] Giles JA [2] McColl JA [3]
Decision:	1. Appeal allowed. 2. Set aside the verdict and judgment for the respondent of $1,333,398 and the order that the appellant pay the respondent's costs. 3. Remit the proceedings to the District Court for a new trial on all issues. 4. Costs of the first trial to be at the disposal of the judge conducting the new trial. 5. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - motor vehicle accident - whether unidentified vehicle caused plaintiff’s accident - whether verdict in plaintiff’s favour sustainable APPEAL - appellate review of findings - whether errors in process of fact-finding - whether denial of procedural fairness -whether defendant deprived of fair trial - whether substantial miscarriage of justice APPEAL - appellate review - natural justice - whether denial of procedural fairness - whether case determined in plaintiff’s favour substantially on points not raised by plaintiff and not identified by primary judge at trial - whether primary judge acted of own motion absent cross-examination or submissions by plaintiff to reject evidence of defendant’s witnesses - whether failure to consider parties’ submissions - whether failure to give party opportunity to deal with potential adverse finding - whether primary judge’s conclusions favouring plaintiff’s case soundly based APPEAL - appellate review - whether denial of procedural fairness to defendant to award plaintiff substantially more than amount sought for head of damages EVIDENCE - expert evidence - opinion - whether factual basis for expert opinion established - whether facts expert relied on to form opinion â€œsufficiently likeâ€� facts established at trial EVIDENCE - expert evidence - report admitted without objection - oral evidence adduced without objection - whether open to primary judge to reject opinion on basis factual foundation not established EVIDENCE - cross-examination - failure to cross-examine - whether trial judge may reject evidence not challenged in cross-examination - whether rejection of evidence not challenged in cross-examination may lead to wrong finding of fact
Legislation Cited:	Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adamson v Ede [2009] NSWCA 379 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Dixon v Whisprun Pty Ltd [2001] NSWCA 344 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Harrison v The Nominal Defendant (1975) 50 ALJR 330 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Jobst v Inglis (1986) 41 SASR 399 John v Rees [1970] Ch 345 Jones v National Coal Board [1957] 2 QB 55 Knight v Maclean [2002] NSWCA 314 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Nominal Defendant v Swift [2007] NSWCA 56 Palmer v Dolman [2005] NSWCA 361 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Re Architects of Australia Association; Ex parte Municipal Officers Association (1989) 63 ALJR 298 (also known as Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Rebenta Pty Ltd v Wise [2009] NSWCA 212 Reid v Kerr (1974) 9 SASR 367 Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Shimokawa v Lewis [2009] NSWCA 266 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; (2002) 23 NSWCCR 463
Texts Cited:
Category:	Principal judgment
Parties:	Nominal Defendant (Appellant) Khoda Saleh (Respondent)
Representation
- Solicitors:	Solicitors: Sparke Helmore Lawyers (Appellant) Milicevic Solicitors (Respondent)
- Counsel:	Counsel: GM Watson SC with JE Hynes (Appellant) G Miller QC with J Jobson (Respondent)
File number(s):	2009/298283
Publication Restriction: