Petkovic v Bingemann - [1999] WASCA 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: PETKOVIC -v- BINGEMANN & ANOR [1999] WASCA 137

CORAM: MALCOLM CJ
PIDGEON J
WALLWORK J

HEARD: 8 MARCH 1999

DELIVERED : 8 MARCH 1999

PUBLISHED : 20 AUGUST 1999

FILE NO/S: FUL 91 of 1998

BETWEEN: MILE PETKOVIC
Appellant (Plaintiff)
AND
PETER MAXWELL BINGEMANN
SCOTT ANDREW ARNOLD
Respondents (Defendants)

Catchwords:

Negligence - Motor vehicle collision - Damages claim - Two drivers involved in rear end collision said plaintiff was not driver of third vehicle - They said driver of that vehicle was older man - Claim dismissed - On appeal - Dismissal of claim required an evaluation of the probability of a conspiracy - This not done - Retrial ordered

Legislation:

Nil

Result:

Appeal allowed

Representation:

Counsel:

Appellant (Plaintiff) : Mr T N Cullity
Respondents (Defendants) : Mr J G Staude

Solicitors:

Appellant (Plaintiff) : Trewin Norman & Co
Respondents (Defendants) : John G Staude

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

Abalos v Australian Postal Commission (1990) 171 CLR 167
Alexander v The Queen (1981) 145 CLR 395
Craig v The King (1933) 49 CLR 429
Devries v Australian National Railways Commission (1993) 177 CLR 472
SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALR 306

Case(s) also cited:

Adamopoulos v Olympic Airway SD (1991) 25 NSWLR 75
Agbaba v Witter (1977) 51 ALJR 503
Briginshaw v Briginshaw (1938) 60 CLR 336
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Dairy Farmers Cooperative v Aquilina (1963) 109 CLR 458
Jones v Hyde (1989) 63 ALJR 349
Kelleher v R (1974) 131 CLR 534
MVIT v Tretjak, unreported; SCt of WA; Library No 7596; 10 March 1989
Voukis v Kozary (1976) 50 ALJR 58
Watt v Thomas [1947] AC 484

MALCOLM CJ: This is an appeal from a judgment of Wisbey DCJ in the District Court by which the learned Judge dismissed an action for damages for personal injury by the appellant against the respondents. At the conclusion of the argument of the appeal on 8 March 1999 the Court allowed the appeal, set aside the judgment of the learned trial Judge and remitted the action to the District Court for re‑trial by a different Judge. The respondents were ordered to pay the costs of the appeal to be taxed and the costs of the trial below were reserved to the trial Judge on the re‑trial. These are my reasons for joining in the making of those orders.
The action resulted from a collision on 13 June 1995 when a vehicle alleged to have been driven by the appellant was struck from behind by a vehicle driven by the first respondent, Mr Bingemann, and then another vehicle driven by the second respondent, Mr Arnold, struck Mr Bingemann's vehicle.
The learned trial Judge dismissed the action because he was not satisfied that the appellant had been the driver of the relevant motor vehicle at the time of the accident. The evidence at the trial is fully dealt with in the reasons for judgment to be published by Wallwork J, with which I agree. I only wish to add some comments of my own.
The learned trial Judge expressed his conclusion as follows:
"In the result, the cogency of the evidence adduced on behalf of the plaintiff is insufficient as against the compelling evidence of the defendants to conclude that at the material time the plaintiff was the driver of the Ford (that is to achieve the degree of persuasion to which I have referred). Because that conclusion involves a rejection of the plaintiff's evidence, I am unable to proceed to a provisional assessment of damages. The plaintiff's claim is dismissed."
In Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed) in considering the power of a court of appeal referred to the well‑known passage in the speech of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 which concludes with reference to the trial judge:
"If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be left alone."
McHugh J went on to say at 178:
"Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion': Watt or Thomas v Thomas ([1947] AC 484 at 488)."
In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Brennan, Gaudron and McHugh JJ said:
"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact (see Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' (SS Hontestroom v SS Sagaporack [1927] AC 37 at 47) or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (Brunskill (1985) 59 ALJR at 844; 62 ALR at 57)."
In State Rail Authority (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALR 306, a case involving allegations of fraudulent claims for payment by construction contractors, findings by the trial Judge based on an adverse view of the credibility of a witness were overturned because insufficient account had been taken of a body of documentary evidence which supported the evidence of the witness. After referring to the passage I have cited from Devries, above, Gaudron, Gummow and Hayne JJ said at [3] - [4]:
"Deane and Dawson JJ pointed out in the same decision that no short exhaustive formula, such as 'glaringly improbable', meets every case. [Devries (1993) 177 CLR 472 at 480]
[4] The gravamen of the appellant's complaint in this Court is the failure by the intermediate court of appeal to accept that the adverse finding by the trial judge with respect to the evidence of one of its witnesses attracted the application of the statement by Jacobs J in Agbaba v Witter [(1977) 51 ALJR 503 at 508]. His Honour gave, as an example where primary findings based on credibility of witnesses might be displaced, a case:
'where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal.'
The appellant further complains that this other body of evidence, largely documentary evidence in character, itself provided an adequate support for its case but that hitherto such evidence has not received adequate judicial analysis."
At [62] - [64] it was concluded, notwithstanding the findings of the trial Judge based on credibility, that his Honour (a) failed to give sufficient attention to all the evidence, especially that of two witnesses, as well as the extensive documentary evidence, and even when evaluating the credit of another witness; (b) wrongly applied the criminal standard of proof in civil proceedings for fraud; and (c) misdirected himself regarding the certification of certain dockets. At [63] - [64] their Honours said:
"[63] It is true that the trial judge, in determining whether to accept the evidence of Mrs Page, was heavily swayed by his impression of her whilst giving oral evidence. However, this circumstance does not preclude a court of appeal from concluding that, in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable. [Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 496-497] The documentary evidence in this case, comprising unchallenged affidavit material of Mrs Meek and Ms Packham, the wage records and related documents of Earthline and Nuline, the list of plant (at least in relation to machine No 59) and the analysis of Coopers & Lybrand (in respect of the duplicity claims), provides significant support to the allegations made by Mrs Page.
[64] As Kirby J and Callinan J point out in their reasons for judgment, these were matters to which weight was not given either by the trial judge or the Court of Appeal. The substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented. There must be a new trial at which this consideration will be undertaken."
The relevant evidence in this case has been fully dealt with by Wallwork J. In my opinion, this was a case in which the learned trial Judge misused his advantage by acting on evidence which was inconsistent with facts incontrovertibly established by the evidence or accepting evidence that was improbable, notwithstanding that it was given by witnesses whom his Honour regarded as otherwise credible. The acceptance of their evidence necessarily implied that a number of other witnesses were involved in a conspiracy to give false evidence, an issue which was not canvassed by his Honour.
The appellant gave his evidence with the assistance of an interpreter because his knowledge of English was poor. He was born in Yugoslavia on 2 July 1956 and lived in the province of Bosnia until he immigrated to Australia as a refugee from the war in Bosnia in November 1993. He arrived with his wife and two children. He was then aged 37. When he and his family first came to Australia they lived in Sydney. They moved to Perth in January 1995. The accident occurred on 13 June 1995 when he was 39. On the previous day, having been assisted by a friend Mr Branco Kruplijanin, a fellow countryman, he had obtained work for a day at the same place as Mr Kruplijanin. He had applied for work approximately a month or two earlier. He did not own a motor vehicle but he had a driver's licence. After work on 12 June he made an arrangement with Branco to borrow his car the next day. The appellant lived in Kardinya. He wished to go to Kallaroo to visit Branco's uncle, Mr Zarko Kruplijanin, a building contractor. The appellant wanted to see if he could get work as a labourer.
The arrangement was that the appellant would take the car home that night, collect Branco the next morning and go to Kallaroo. He would then pick up Branco and return the car in the evening. The car was a blue Ford Falcon. The arrangement was implemented. The appellant said he arrived at the building site at around 8.00 am. He left about 9.00 am and the accident happened shortly after that.
Wallwork J has described in detail the evidence relating to the accident and the telephone call to Zarko which resulted in his wife, Mrs Georgie Kruplijanin, arriving at the scene 20 to 30 minutes after the telephone call. After talking to the people at the scene Mrs Kruplijanin took the appellant to see a doctor some 15 to 20 minutes later. Two or three days later he went to see his own doctor at Kardinya.
On 14 June 1995, the day after the accident, the appellant went with Georgie to the Warwick Police Station where the appellant made a report of the accident with Georgie's assistance.
In cross-examination the appellant was asked whether before the accident he knew that both Zarko and Georgie had made claims for damages following a car accident. He denied this and denied he had any discussion with them beforehand about what would happen if he was in a car accident and was injured. He obtained his driver's licence on 15 March 1995. He said he was an experienced driver in Europe. He had only driven once after getting his licence in Perth prior to the day of the accident. This was on an occasion when he drove Branco's car to the shops in Kardinya.
The appellant agreed that he had known for some 12 months that the respondents denied that he was the driver of the Ford Falcon involved in the accident. He was also aware that the respondents alleged that the Falcon was stationary at the time of the accident.
The appellant said it took him 15 to 20 minutes to drive from the building site where Zarko was working to where the accident happened. He said that he was driving in the left lane at about 50 kph and vehicles were passing him in the right lane approaching the entrance to the Freeway from Whitfords Avenue. There were two impacts. The first vehicle ran into him and the second vehicle ran into the back of the first vehicle. When the first car hit him, his car went dead and stopped.
The appellant said that the driver of the white car, the second respondent ("Mr Arnold"), agreed to let him use his mobile telephone to call Zarko. There was a dispute whether the appellant or Mr Arnold dialled the number. It was not disputed that the appellant produced a business card of Zarko with his telephone number for the purpose of the telephone call.
He said that the first respondent, Mr Bingemann, came up and asked him if he was "okay" and he said to him, "I'm okay".
He said that he handed his driver's licence to the other two drivers and they had written down their car registration numbers. He had obtained their names and their driver's licence numbers. He denied that he simply told them his licence number. He acknowledged that if they had been given his driver's licence they would have seen his address and date of birth together with his photograph. The respondents certainly had his name, address and driver's licence number.
It was put to the appellant in cross‑examination and rejected by him that he was not the driver of Branco's car on the day in question. He said that it was only after the accident that he learned he could claim damages. It was Georgie who told him. He then went to see a solicitor. Notice of claim was given by the appellant's solicitor by letter dated 16 June 1995. He denied that he arranged with someone else to have the accident and then pretended he was the driver of the vehicle.
It was not put to the appellant that whoever was the driver of the vehicle had agreed to let the appellant say that he was the driver of the motor vehicle on 13 June 1995. It was not put to him that he had conspired with Zarko, Georgie and Branco so that together they would give false evidence which supported his evidence that he was the driver of Branco's vehicle at the time of the accident.
Mrs Jelena Petkovic, the appellant's wife, gave evidence which corroborated the appellant's evidence regarding the use by the appellant of Branco's car. He brought it home on the evening of 12 June and left in it on the morning of 13 June. At about 11.00 am on 13 June she was informed by Zarko that her husband had been involved in an accident. Georgie brought him home at about 3.00 pm when he was complaining of headaches and neck pain. He took medication and went to lie down.
In cross-examination Mrs Petkovic related the history of the friendship which existed between she and her husband and Branco and his wife and their children. She remembered the appellant borrowing the car because it was unusual, it was "something big, very big". It was not suggested to Mrs Petkovic that her evidence was untruthful in any respect or that she was aware that her husband was not in fact the driver at the time of the accident. It was not suggested that they were desperate for money.
The appellant's daughter Sinisa, then 18 years old, gave evidence that on 12 June 1995 the appellant came home in Branco's car. She knew he was going to see Zarko about a job the next day. He had gone by 8.00 am the next day when she got up. When she got home from school he was in bed looking pale and in shock. He told her about the accident. She gave evidence that Zarko telephoned their home a couple of days before the accident and told the appellant to come and see him and what he was doing. Her father had told her of this at the time. It was not something she was told after the accident.
It follows that there was a substantial body of evidence to the effect that early on the morning of 13 June 1995 the appellant drove Branco's car from Kardinya to pick up Branco from his house and dropped him off at his place of employment. He was actively looking for work at the time. He then drove the car to Kallaroo and visited the building site where Zarko was working. The accident happened shortly after he left the building site. After the accident the respondents were given details of the appellant's driver's licence and the driver of Branco's car used Mr Arnold's mobile telephone to call Zarko who in turn arranged for Georgie to come.
It was not disputed that Georgie arrived 20-30 minutes later. She found the appellant sitting on the roadside distressed. She took him to a nearby doctor where he was treated. He went home. He exhibited to his family symptoms consistent with the injuries he said he sustained in the accident. He likewise exhibited these symptoms to the family doctor.
As I have already mentioned, if the appellant was not the driver, but changed places with the driver shortly after the accident, the implication is that there was a conspiracy to defraud by means of a false claim by the appellant that he was the driver in the accident and entitled to recover damages for personal injury falsely alleged to have been suffered in the accident. Such an implication would need to include as parties to the conspiracy, at least, the appellant, Branco, Zarko and Georgie as well as, probably, the appellant's wife Jelena and daughter Sinisa. The finding by the learned trial Judge that it was highly unlikely that two apparently credible witnesses such as the respondents could not both have been mistaken about the identity of the appellant requires an evaluation of the inherent probability of the existence of the conspiracy. Such a conspiracy would necessarily be implied by the rejection of mistake on the part of the respondents. In this context it is relevant that the driver described by the respondents was described as having a tanned and lined face. The appellant had a tanned and lined face, although much younger than the man the respondents recalled as being in his 60s. The appellant described symptoms which were diagnosed as shock by the medical practitioner who saw him. This was consistent with the observations of the appellant made by his wife and daughter.
It is notorious that honest mistakes by way of positive identification can be made, even by persons of good eyesight, who are neither very young nor very old, whose memory is not necessarily defective by lapse of time and who were not suffering from shock at the time of observation: see Alexander v The Queen (1981) 145 CLR 395. Regarding the identification of the driver of a car, Evatt and McTiernan JJ said in Craig v The King (1933) 49 CLR 429 at 446:
"An honest witness who says 'The prisoner is the man who drove the car,' whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity. It therefore became necessary, in the present case, to pay attention to the following circumstances:- (1) Whether the witness was a stranger to the driver of the car, (2) whether the driver had any special peculiarities which, at the time, impressed themselves upon the witness, (3) the length of time which elapsed between [the time of the observation] and (a) the time when the witness first described the driver or (b) the time when the witness saw the accused person, (4) the description of the driver given by the witness before seeing the prisoner, and (5) the circumstances under which the prisoner was first seen and identified by the witness as the driver."

This case is the reverse of the factual situations envisaged in Alexander and Craig in that both respondents asserted that the appellant was not the driver because the person they recollect as the driver was a much older man who they thought to be in his 60s, although his face was tanned and lined as was the appellant's face. While one of the respondents was a policeman and it is unusual for two eye witnesses to both make the same mistake, the agitated state of the appellant at the scene may provide some explanation for their non‑recognition when they saw the appellant in court.
In the course of the evidence of the appellant's wife the learned trial Judge made a number of observations which reflected a doubt in his mind regarding her need for an interpreter which reflected on her credibility as a witness, and from the transcript, appears to have made her task of giving evidence difficult. It is true that there may often be a difficulty in assessing credibility in such circumstances. The fact that the witness

appeared to understand some questions and even occasionally answered in English, however, is not something which should necessarily give rise to a question of credibility. It is necessary to take care to ensure that a prejudicial view of credibility is not taken merely because a witness makes use of an interpreter and sometimes appears to be able to understand or speak in English.

PIDGEON J: I agree with the reasons of the Chief Justice and of Justice Wallwork.
WALLWORK J: The appellant appealed against the dismissal of a claim by him for damages arising from a motor vehicle collision. His claim was dismissed by a learned trial Judge in the District Court at Perth because the Judge was not persuaded that the appellant had been the driver of the vehicle at the time of the relevant collision. His Honour concluded:
"In the result, the cogency of the evidence adduced on behalf of the plaintiff is insufficient as against the compelling evidence of the defendants to conclude that at the material time the plaintiff was the driver of the Ford (that is to achieve the degree of persuasion to which I have referred). Because that conclusion involves a rejection of the plaintiff's evidence I am unable to proceed to a provisional assessment of damages. The plaintiff's claim is dismissed."
At the conclusion of the hearing of the appeal, the Court was unanimously of the opinion that the appeal should be allowed, the judgment of the learned Judge in the District Court set aside and the matter remitted to another Judge of that Court to be retried. The respondents were ordered to pay the appellant's costs of the appeal to be taxed. The question of the costs of the first trial were reserved to the trial Judge at the second trial. The following are my reasons for concurring in that judgment.
The plaintiff was born in Yugoslavia on 2 July 1956. He emigrated to Sydney with his wife and children in November 1993. The family came to Perth on 10 January 1995, having been told that the climate was more conducive to their health and the prospects of employment were better.
The appellant had alleged that on 13 June 1995, whilst he was driving a Ford Falcon sedan on the on‑ramp from Whitfords Avenue to

the Mitchell Freeway at Kingsley to travel south, the vehicle was struck from behind, firstly by a vehicle driven by Mr Bingemann and then secondly they were both struck by a vehicle driven by Mr Arnold. The appellant claimed that he had been injured in the accident and he claimed damages for his injuries.

The appellant claimed that at the time of the accident he was driving a vehicle belonging to a friend of his, Mr Branco Kruplijanin. He said he had been returning to the freeway after having visited his friend's uncle, Mr Zarko Kruplijanin at a place where he was doing some contract work. The appellant had not owned a motor vehicle in Australia before the accident but he had a driver's licence.
The appellant had said in evidence that as he was driving slowly in the left lane on the ramp to get onto the freeway, he suddenly heard the noise of brakes. The vehicle he was driving was then struck by a following vehicle. It was then struck again when a second vehicle struck the following vehicle which in turn struck his vehicle.
The appellant said in evidence that following the accident the driver of the second vehicle had approached him as he was seated in his car. He had then alighted and spoken to the first respondent who was still in his vehicle. He had handed the first respondent his friend's uncle's business card. The first respondent had then dialled the telephone number on the card and had passed the telephone to the appellant who had spoken to his friend's uncle explaining that he had had an accident. He requested assistance. This had occurred because the appellant at the time was unable to speak English sufficiently to communicate with either of the other two drivers or to comply with the necessary formalities following the accident. His friend's uncle Mr Zarko Kruplijanin had said that he would send his wife, Mrs Georgie Kruplijanin to assist.
The appellant said that Mrs Kruplijanin had arrived at the scene 20 to 30 minutes after the telephone call. She had spoken with the drivers of the towing vehicles at the scene. After about 15 to 20 minutes Mrs Kruplijanin had taken the appellant to a doctor after he had become ill in her vehicle. Mrs Kruplijanin had then taken him to where his friend Mr Branco Kruplijanin was working and then had driven him home.
The appellant said that after the accident he had suffered from headaches and neck pain and had received medical treatment. He had reported the accident at a suburban police station on the day following the accident. He had been taken there by Mrs Kruplijanin and Mr Branco Kruplijanin.
The appellant told the police that the accident had happened on Tuesday 13 June at 9.10 am. Mrs Georgie Kruplijanin had helped him fill out the form at the police station.
The appellant told the learned Judge that before the collision he had gone to Mr Zarko Kruplijanin's work site to see what sort of work he would be required to do if it became available. Mr Kruplijanin had told him that there was a fence and some wiring which needed to be pulled down at the site. He had not worked on that day because there was not any work to be done at that time. He told the Judge that he had left the site, which was at Kallaroo, at around 9 am intending to return the vehicle he had borrowed to Mr Branco Kruplijanin's home. He had earlier taken Branco Kruplijanin to work that morning before he had driven to Kallaroo. He denied in cross‑examination that his vehicle had been stationary immediately prior to the impact. He was definite that the first of the respondents had dialed Mr Zarko Kruplijanin's number on the first respondent's mobile car telephone. He said he had handed his driver's licence to one of the respondents to enable that person to obtain his personal information from it.
It is noteworthy that the number of the appellant's driver's licence was on both of the respondents' reports of the accident to the police, before any question had arisen that the appellant was not the driver of the motor vehicle at the time of the collisions. Later, on 16 June 1995 the appellant had been taken to a solicitor by Mrs Kruplijanin to assist him with the consequences arising from the accident.
The appellant's wife Mrs Petkovic, gave evidence that she had received a telephone call from Mr Zarko Kruplijanin on the day of the accident advising that the appellant had been involved in an accident. He had later come home looking pale and complaining of headaches and neck pain. The appellant's daughter also gave evidence that when she arrived home from school on that day, the appellant had been in bed and had looked pale and shocked.
Mr Branco Kruplijanin said in evidence that prior to the accident he had suggested that the appellant go to see his uncle Mr Zarko Kruplijanin to see whether some work was available. He confirmed that the appellant had delivered him to his place of work at Steggles' factory in Osborne Park on that morning, at some time between 5.30 and 6.30 am. He had later on that day seen the appellant and the appellant had advised him that he had been involved in an accident.
Mr Zarko Kruplijanin said that he had telephoned the appellant sometime before the accident to tell him where he was working on a contract site, so that the appellant could come and have a look. On the day of the accident the appellant had appeared at the site at about 7.00 am. Shortly afterwards, the appellant had left the site. He had later received a telephone call from the appellant advising that he had been involved in an accident. Mr Zarko Kruplijanin said that he had telephoned his wife Mrs Georgie Kruplijanin and asked her to go and look for the appellant. Later she had telephoned him and said that she had been unable to find the appellant. Mr Kruplijanin then also went looking for the accident scene. When he arrived there his wife was already there. At that time there had been at least one tow truck present. The appellant was sitting on the kerb holding his head. Mr Kruplijanin had returned to work and left the matter in his wife's hands.
From the evidence of Mr and Mrs Kruplijanin, and unless they were not telling the truth, it is obvious that the appellant had been at the scene of the accident. Mrs Kruplijanin said that when she arrived at the scene, the appellant had been kneeling or sitting behind his vehicle. He was in shock. She said that after talking to a tow truck driver she had left the scene, taking the appellant with her. He had looked terrible. He could not stop shaking. She had had to stop and the appellant had got out of the vehicle. She had then taken him to see a doctor at the Edgewater Medical Centre. Following that she had taken him to Mr Branco Kruplijanin's workplace. She had then driven him home. On another day she had taken the appellant to the Warwick Police Station to assist with the reporting of the accident and with the necessary formalities. She confirmed that while she was at the accident site her husband had arrived at the scene.
Unless the appellant and Mr and Mrs Kruplijanin were not telling the truth, the appellant was certainly at the scene after the accident, although the respondents said that neither of them saw him there. They said that the man driving the vehicle which the appellant said he was driving, was an older man, about 60 to 65 years of age. It is significant that it was quite some time after the accident that it was first suggested that the appellant had not been driving the vehicle at the time of the accident. From the evidence it appears that whoever was driving the vehicle which the appellant said he was driving at the time of the accident, had the appellant's driving licence, or at least the number of it. Whoever it was gave that number to one or both of the respondents just after the collisions.
The matter was defended at trial on the basis that both the respondents said that the driver of the vehicle which the appellant was allegedly driving, was an older man. The second respondent, Mr Arnold, a police officer, said that after the accident he had got out of his vehicle and had spoken to Mr Bingemann, the driver of the first vehicle to strike the vehicle which was allegedly driven by the appellant. He described the driver of the vehicle which was said to have been driven by the appellant as "an elderly gentleman" who had indicated to him that he did not speak good English. He described that person as a gentleman over 60 years of age, approximately 5 feet 4 inches in height, with dark grey receding hair, about the same age as his father, who was born in 1929. The second respondent was emphatic that the person he saw at the scene was not the appellant. He did however say that the drivers had exchanged details at the scene. He could not recall seeing any driver's licence. He said he might have been at the accident site for three-quarters of an hour in total. He could not recall any other vehicles pulling up during that time. It was when he received the statement of claim on or about 17 November 1996 and had noticed that the appellant was 39 years of age at the time of the accident, that he had contacted the SGIC to express doubts about that fact. He said it was probable that he had been handed a piece of paper on which the driver's licence number had been written at the scene of the accident. He was not sure how the driver of the Ford had left the scene. He had told a Commission investigator that the driver of the Ford was a male person in his mid‑60s. He had grey hair on both sides of his head. He was balding on the top. He had a very lined face with a weathered complexion. Following the accident he had given the police the appellant's name as being the driver of the Ford with his telephone number and his driver's licence number.
The first respondent, who was the driver of a white Holden Commodore, said that after the accident he had approached the driver of the Ford, who had indicated he could not speak English. He described that person as an elderly gentleman in his early to mid‑60s, about 5 feet 7 inches in height. He had dark hair that was greying, brushed back and quite heavily receding at the front. He had an olive complexion and a lined face. The first respondent said he had allowed that person to use his car telephone and that that person had sat in his vehicle to use the phone. The first respondent denied dialling a number for either of the other two drivers. He was quite emphatic that the appellant was not the driver of the Ford. He claimed that the driver of the Ford had been picked up a short time after making his telephone call but he was unable to say what type of vehicle it was that came to collect him. He had described the other driver after the accident to a Commission investigator, as having "blackish hair, greying, receding on top, but thicker on the sides, cut short and it was wavy. It was brushed back, not parted".
In cross‑examination the first respondent stated that the driver of the Ford had a receding hairline but was not bald. He confirmed that Telecom records demonstrated that a telephone call had been made from his car phone on the morning of the accident to Mr Zarko Kruplijanin's number. He said that the driver of the Ford was not the appellant who appeared in court.
There was medical evidence called that the appellant had attended upon Dr Hernanan on the day of the accident and had been diagnosed as having a mild whiplash injury. He was given medication. The appellant told the doctor of tenderness and restrictive movement at that time. Three days later the appellant had consulted Dr Jones. He had diagnosed a post‑traumatic anxiety state and a significant cervical strain. Other medical evidence concerning the appellant's injuries was given.
In his conclusions, the learned trial Judge said that Mr Bingemann and Mr Arnold, with their demeanour, frankness, and clarity of recollection were both impressive witnesses: "I have no doubt as to their honesty; the question being as to the reliability of their recollection". His Honour did not accept that immediately prior to the impact the vehicle which was said to have been driven by the appellant was travelling at anywhere near 50 kph as had been indicated by the appellant. Both of the respondents had said that that vehicle was stationary prior to the collision. His Honour said that the respondents' descriptions of the person driving that vehicle did not fit the appellant as observed in court. He said it would be a remarkable coincidence for both the respondents to be so similarly mistaken. There was no suggestion that there had been collusion between them on that issue. He said it was significant that the respondent Arnold, had spontaneously contacted the Commission to express his concern after reading the appellant's date of birth in the statement of claim.
The learned trial Judge found that there was a general unreality and inconsistency in the evidence of the appellant's witnesses. He was unable to conclude that at the material time the appellant had been the driver of the Ford.
At the appeal it was common ground that the appellant had a lined and weather‑beaten face. There had been no report to anybody after the accident by an older man as identified by the respondents. The only person who had reported the accident had been the appellant. There was no evidence that any other older man had left the scene or had been at the scene. That person (if he existed) must also have been involved in the alleged conspiracy, because there was no doubt that there was an accident. That older person would have had to have left the scene and somehow or other been replaced by the appellant who was then taken from the scene of the accident by Mrs Kruplijanin to the doctor. That older person must also have given the number of the appellant's driving licence to both the respondents, or one of them. He must also have had Mr Zarko Kruplijanin's telephone number because, according to the first respondent, the relevant driver had telephoned Mr Kruplijanin using the first respondent's mobile telephone in the first respondent's car. Also the Ford involved in the accident was said by Mr Zarko Kruplijanin to have been at his workplace prior to the accident.
On the appeal it was contended for the respondents, that the learned trial Judge had been entitled to accept the evidence that the appellant was not the driver of the vehicle involved in the accident. It was said that both the respondents had given virtually the same description of a man in his 60s as being the driver of the Ford vehicle involved in the accident. They had both said that the appellant had not been the driver of the other vehicle. It was submitted that it might have been possible for a person in an accident to make a mistake as to the identity of another party, but for two mature persons of good character to do this was most unlikely.
It was conceded for the respondents on appeal, that the driver of the Ford vehicle would have had to have been involved in a conspiracy to put the appellant in a position where he could claim damages. It was conceded that Mr Zarko Kruplijanin had received a telephone call after the time of the accident and that he and his wife had gone to the scene. Unless Mr Kruplijanin was not telling the truth or unless he was mistaken, it had been the appellant who had called Mr Kruplijanin on the telephone, so he must have been the one who made the telephone call to Mr Zarko Kruplijanin from the scene.
It was said for the respondents that the motive for the conspiracy would have been to found a claim for damages "or to avoid the person who was the driver having been involved in some legal difficulty if that person wasn't entitled to drive or was not entitled to be there."
It was said for the respondents that there were other matters which had troubled the learned trial Judge about the cogency of the appellant's case.
It was conceded for the respondent that "the old man with greying hair" would have to have used Mr Bingemann's telephone and to have telephoned Mr Zarko Kruplijanin, and that by the time that Mrs Georgie Kruplijanin had got to the scene, the old man had disappeared and the appellant was there. It was conceded that there had been no cross‑examination on the question of conspiracy during the trial other than of the appellant. It was not suggested to any of the other witnesses that they were part of a conspiracy. Mr Zarko Kruplijanin had not been cross‑examined along those lines.
It was also conceded that Mr Zarko Kruplijanin had not been cross‑examined along the lines that he had not received a telephone call from the appellant but from some other man. The appellant had been asked if he had arranged for someone else to have an accident and pretend that the appellant was the driver of the vehicle, to which he had replied "That is absolute fiction".

The learned trial Judge when discussing why the appellant would have telephoned Zarko Kruplijanin after the accident seeking assistance commented that the appellant "does not appear to have a substantial relationship with Zarko". If there was not any substantial relationship between the appellant and Mr Zarko Kruplijanin, it is unlikely that Mr Zarko Kruplijanin would be a party to any conspiracy.
If Mr Zarko Kruplijanin had spoken to someone other than the appellant, he probably would have known he was speaking to someone other than the appellant, unless that person unknown to Mr Zarko Kruplijanin had been impersonating the appellant.
There is also the improbability of the appellant saying that he was driving at 50 kph at the time of the accident if the relevant vehicle was stationary.
It was said for the respondent that the learned trial Judge had heard evidence over a number of days from a number of witnesses and at the end of the trial had not been satisfied on the balance of probabilities that the appellant was the driver.
In my view the learned Judge did not give sufficient reasons for rejecting the appellant's evidence and also for not giving full credit to the evidence of some of the witnesses who were called for the appellant. It is unfortunate that Mr Zarko Kruplijanin was not given the opportunity to defend the position that he had received a telephone call from the appellant from the scene. For the appellant not to be the driver would necessitate a conspiracy which would have been difficult to arrange.
In my opinion the learned trial Judge erred in his reasons for judgment in that when weighing the evidence he did not adequately assess the probabilities one way or the other, of there being a conspiracy in relation to the accident. As against a conspiracy, the learned Judge would have had to consider the possibility of a common mistake concerning the identity of the driver of the Ford.