Senior v Insurance Commission of Western Australia - [2018] WADC 160

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SENIOR -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2018] WADC 160
CORAM:   O'NEAL DCJ
HEARD:   5-7 NOVEMBER 2018
DELIVERED          :   29 NOVEMBER 2018
FILE NO/S:   CIV 4744 of 2016
BETWEEN:   NICOLE SENIOR
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Motor vehicle accident - Trial of liability - Credibility findings - Terms of unknown facts

Legislation:

Nil

Result:

Finding for the defendant

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
Defendant	:	Mr T J Hammond

Solicitors:

Plaintiff	:	Separovic Injury Lawyers
Defendant	:	Jackson McDonald

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

Jones v Dunkel (1959) 101 CLR 298
Spence v Demasi (1988) 48 SASR 536

O'NEAL DCJ:

Introduction

This is a claim for damages for personal injury, said to have been caused by the negligent driving of an unknown driver.
At the trial before me, the only issue I was called upon to resolve was that of liability. That is, I was asked to determine whether an accident occurred as the plaintiff alleges. In the event that I find there was such an accident, I am further asked to determine whether that accident occurred as a result of a breach of duty by the unknown driver, and further whether there was any contributory negligence by the plaintiff. I was not asked to decide whether an accident of the kind alleged caused the plaintiff to be injured.

The pleaded cases

The statement of claim alleges:
2.The defendant is sued in accordance with the Motor Vehicle (Third Party Insurance) Act (WA) as it has not been possible to ascertain the identity of the other driver (hereinafter referred to as 'the Unidentified Driver') or the other driver's vehicle (involved in the collision on the material date as referred to herein).
3.On 24 December 2014 ('the material day'), the unidentified driver drove its vehicle (a Holden Gemini which was dark brown in colour) into the front left hand side of the Plaintiff's vehicle as a result of failing to give way to the Plaintiff's vehicle, which was at the material time travelling along a priority road through the car park of the Miami Plaza Shopping Centre.
Particulars of the unidentified driver's negligence
4.The collision referred to herein was caused solely as a result of the Unidentified Driver's negligence in that the Unidentified Driver:
4.1Failed to give way to the Plaintiff when it was exiting from another section of the Miami Plaza Shopping Centre in front of the Woolworths store;
4.2Failed to keep a proper lookout;
4.3Failed in the circumstances to drive at a safe speed;
4.4Failed to exercise due care and attention;
4.5Following the accident failed to stop and drove off in a westerly direction towards Old Coast Road, Falcon.
The defence admits some details of the plaintiff's case. That includes 'the material date' that the plaintiff says she was driving her motor vehicle, and par 2 of the statement of claim, to the effect that an unidentified driver (Unidentified Driver) drove the unidentified vehicle. Otherwise the defence does not admit that the Unidentified Driver drove his or her vehicle in the manner alleged, and denies that the Unidentified Driver was negligent, or that 'the collision was caused by the Unidentified Driver's negligence'. There is an alternative plea of contributory negligence by the plaintiff.

The evidence at trial

The plaintiff is now 42 years old. She completed year 12 in school and obtained an Associate Diploma in Childcare after studying a further two years at TAFE. She had been married, but was separated at the time of the events the subject of the trial. She has two children. The youngest is 19 years old.
In her evidence‑in‑chief before me, the plaintiff described how, on the morning of Christmas Eve 2014, she drove her white 1990 Volvo the short distance from her home to the Miami Plaza Shopping Centre. She had owned the Volvo for about six months. She said that she was planning to buy groceries for the Christmas holiday period.
About 50 m into the car park the plaintiff said she 'veered on a right hand turn' - around the bend of one of the main thoroughfares at the shopping centre parking lot. She was 'coming around to the right looking for a car park' she said, when a car came from the other direction - a roadway off the left leading from a part of the car park adjacent to the shops. She said the other car - a brown Holden Gemini came from that direction 'and smashed into me at that intersection'. The other car she said '… was going ‑ must have been going way too fast by the time he came in that corner and then he hit me (my emphasis)'.
She said that the Gemini collided into the left front of her Volvo. There was just one person in the Gemini, the driver, who appeared to be a young man wearing some sort of hat or hoody. He immediately backed up and then drove at speed around her and out of the parking lot. She did not see the number plate.
The plaintiff marked a photograph of the parking lot to show the directions of the two vehicles and the place where the collision is said to have occurred. If that evidence is to be taken literally, the Gemini cut diagonally across the roadway, nicking the ramp to a pedestrian walk and colliding with the plaintiff's car before it entered the intersection. On this marked up photograph, exhibit 1, the angle of impact appears to be 90 degrees, or perhaps slightly away from the direction of travel indicated for the plaintiff's car. In other words, she has indicated either a broadside collision or one where the Gemini was headed slightly towards the rear of her car.
The available photographs of the area where the plaintiff said the accident occurred show a 'T‑junction'. According to the plaintiff, she was on the through road, and the Gemini was emerging from the adjoining road leading from a parking area closer to the shops.
The plaintiff gave no evidence‑in‑chief as to her manner of driving prior to the alleged accident, beyond her 'coming around to the right looking for a park …'. In cross‑examination, evidence was elicited from her that she was driving at a walking pace while trying to spy a parking spot. In cross‑examination she said that, prior to the collision, she was 'paying attention to where she was going'.
In a statement she signed in August 2016 the plaintiff said that, after the collision, her car would not start.
In her evidence‑in‑chief the plaintiff was asked what she did 'after the impact'. She said:
I was looking for some help and it was Christmas Eve, so it was very, very hot and chaotic. There wasn't very many people that that would help me. I pushed the car out of the way of oncoming traffic … There was one other person that I – pushed with me. But by the time I moved the car back I was crying because there was no one standing next to me.
The plaintiff said that it happened very quickly, that she was in shock, but shortly after that she called the police. In her evidence‑in‑chief she said that the police asked her if anyone 'needed an ambulance'. When she told them 'no', they told her that police would not attend and that she would have to file an online accident report.
In the August 2016 statement signed by the plaintiff, the plaintiff describes the conversation with the police in somewhat different terms. She says there that, after she told the police what had happened, they asked her if '… anyone was hurt?' and she told them that 'there were no injuries. No ambulance needed to be called'.
On the plaintiff's account, the accident took place at a time when the shopping centre was busy, and the carpark understandably crowded. In her evidence‑in‑chief the plaintiff was not asked whether she believed anyone else had witnessed the accident, and she was not asked if she obtained the name and details of any witness to the accident. She was asked whether '… after the accident she had reported it to any third parties'. This prompted her to add something not previously mentioned. She said, 'I saw a lady that I recognised in the car park. I asked her if she could help but she had three children of her own. And there was nothing she could do'.
The plaintiff was asked, 'What was the lady's name?' and she answered 'Sian'. She was asked, 'Can you remember Sian's surname?' To this she responded 'Ewert, I think'. Like this answer, the plaintiff's manner when she gave this evidence suggested that there was some uncertainty on her part about the woman's surname.
The extent of the damage claimed to the plaintiff's Volvo can be seen in photographs that were tendered at trial. These photos were taken by the plaintiff for the purpose of making a claim on her comprehensive insurance for payment for her Volvo. In her evidence‑in‑chief, she said the photos were taken 'approximately a few days after the accident.'
The property damage claim was apparently made on 7 January 2015.
The plaintiff bought the Volvo about six months prior to the claimed accident. She arranged comprehensive insurance for her Volvo about a month before her claimed accident. The insurer had asked the plaintiff to have the Volvo inspected. No inspection took place before 24 December 2014.
The photos show that much of the left front wheel well is caved in, and the car's bumper, although seemingly undamaged itself, has come loose from its fixings and is hanging down on the left side. There are an assortment of marks or apparent marks, from the front bumper to behind the wheel well.
An attempt was made in evidence-in-chief to have the plaintiff identify the damage caused by the collision she described. The result was not particularly satisfactory. She was asked
… just looking at – the first photograph … are you able to explain to the court – and don't want you to – to speculate, what damage you believed was caused by the collision?
To this she responded,
I – I couldn't specify it – the – the whole thing.
So the answer is, you don't know?‑‑‑I don't know.
In response to this I suggested that another approach might be to determine if there was any damage prior to the collision. Counsel then asked 'I understand your evidence to be that you – you don't know what was caused by the collision?' The plaintiff answered 'I believe that damage was caused by the collision.' I then asked, 'That is, all of it, all of what we can see?' To this she answered 'All of what we can see, I ‑ I noticed a dent that maybe I – I wouldn't – I couldn't say … Definitely no previous extensive damage such as there is there.'
The plaintiff said, that after she pushed her car out of the way, she then walked back around the block to a neighbour's house. She saw Greg Allen, who was staying there temporarily, at the home of his niece. She asked for his help, and he went with her to look at her car. She said they then realised the Volvo would need to be towed, and so they went and got Mr Allen's LandCruiser and some towing equipment, then returned to tow the Volvo back to an empty block adjacent to the plaintiff's home. The Volvo remained on the empty block until it was towed away around 5 January 2015.
Mr Allen was called as a witness on behalf of the plaintiff. He could not remember the date, but he said the plaintiff came knocking on his door 'near Christmas' and she was 'crying and upset'. She told him someone 'had run into her' and asked if he could tow her car. That evidence was given without objection.
Mr Allen walked back to the shopping centre with her. He said he '… assessed the damage to the car … and to see if it was drivable, which it was not'. He gave no other evidence as to the nature and extent of damage to the Volvo. He was never asked what damage he observed. He was never asked why in his view the car was not 'drivable', whether it was because of structural damage, or because it would not start.
Mr Allen gave evidence that he went home to get his LandCruiser to tow the Volvo. He towed the car back to the empty block adjacent to the plaintiff's home, while the plaintiff steered the Volvo behind the LandCruiser.
The plaintiff filed an Online Crash Report form (OCR) on 27 December 2014. It was tendered, without objection, in the plaintiff's examination‑in‑chief. In it she gave details about the collision, generally consistent with the substance of her evidence before me. The place she identifies as the 'crash location' on the first page of the report is plainly wrong, as she has since acknowledged. It names Nutbush Avenue and Branchfield Way as the place of the accident, and a location on an online map places the location off of Nutbush Avenue, seemingly in the middle of nowhere. Elsewhere in that report however she clearly describes the accident as occurring in a parking area or shopping centre road.
In another section, when asked to provide information about the 'involved vehicles', when referring to her own vehicle next to the enquiry 'vehicle towed', she answers 'No'. Obviously Mr Allen towed her car. The plaintiff explained this discrepancy in her evidence as a misunderstanding as to what she was being asked in the OCR.
In the OCR she provides the name of Sian Ewert as a witness, and gives Ms Ewert's contact details.
In cross‑examination, the plaintiff agreed that she had named Ms Ewert as a witness in the OCR, and that she was aware Ms Ewert had said she had witnessed the accident, or some aspects of the incident. Based on other evidence in cross‑examination that I will refer to later, it is difficult to understand why there should have been any uncertainty on the plaintiff's part when she was asked about Ms Ewert's surname.

Expert evidence

Both parties called expert evidence in the form of the opinions of mechanical engineers. The plaintiff called Adjunct Associate Professor Robert Anderson to try to support the plaintiff's account as to how her car came to be damaged. The defendant called Mr Daniel Simms so as to undermine the plaintiff's account.
Both witnesses are qualified mechanical engineers and their expertise to give the evidence that they did was not challenged.
Mr Simms is more of a generalist. From the curriculum vitae that was made an exhibit, it seems that he is prepared to offer his opinion on a very broad range of subjects to which the expertise of a mechanical engineer might be applied.
Professor Anderson on the other hand has obviously made a speciality of road accident research and he has published widely on subjects involving crashes, engine mechanisms, road safety and vehicle safety. In my view he is the better qualified of the two experts to give an opinion on matters of motor vehicle accident reconstruction.
The difficulty that confronted both experts, and that detracted from any weight that could otherwise be given to their opinions, is that neither actually examined the plaintiff's Volvo. Of course neither could examine the other vehicle said to be involved in the accident. Their conclusions were mainly drawn from their observations of the photographs of the Volvo taken by the plaintiff. As Professor Anderson observed, the inability to examine both vehicles limited the extent to which useful conclusions could be drawn.
Both experts were briefed with a variety of items, including the statement signed by the plaintiff in August 2016.
In the portions of Mr Simms' report where he deals with matters that might fall within the expertise of a mechanical engineer, he advances the theory that the plaintiff collided, not with a Holden Gemini, but with a heavy vehicle. In his opinion, all the damage that can be seen in the photographs taken by the plaintiff can be explained by a collision with a heavy vehicle tyre.
Mr Simms disputed that the damage seen in the photographs was consistent with a transverse collision with a Gemini as described by the plaintiff. His 'alternative theory' is that there was a collision between the Volvo and the leading edge of a heavy vehicle tyre, with the initial impact occurring at the front left corner of the bumper of the Volvo. Mr Simms includes diagrams in his reports to support this 'alternative theory'. The theoretical heavy vehicle tyre can be seen towering over the bonnet of the Volvo.
The transcript will show that Mr Simms was not able to articulate, at least in any way satisfactory to me, how it is that a collision of that kind could occur leaving just a slight dark smudge beneath the rubber moulding trim on the bumper, and leaving the bumper otherwise intact. In my view, a comparison of the size of the vehicle tyre as shown in Mr Simms' diagrams with the damage seen in the photographs demonstrates the implausibility of this 'alternative theory'. Nor in my view are the discrepancies between those two things explained, as Mr Simms tried to do, by problems of 'parallax' in observations of the photographs taken, or the toroidal shape of a tyre. In my view, Mr Simms' opinions do not rise above speculation, and I reject them.
Professor Anderson's opinions at least had the virtue of according with common sense. He acknowledged, for example, the possibility that some of the marks that can be observed in the photographs, particularly at the extremes, may not have been damage caused by the claimed accident, or may not have been damage at all, but dirt.
With respect to the obvious main damage that can be seen, Professor Anderson said that it was consistent with damage that could be caused by the front right‑hand corner of at least some model years of the Holden Gemini. He said that, while there was a 'lateral component' in the collision that was 'probably the most significant component, there 'was also a lesser longitudinal component as well'. He envisaged 'that the two vehicles came together at some acute angle …'. The 'longitudinal component' however would suggest that both vehicles were travelling in very broadly the same direction. In other words both vehicles were probably moving to some degree in the same direction of travel, and not, as the plaintiff's diagram suggested, exactly perpendicular or tending somewhat in opposite directions.
Professor Anderson's conclusion, based on the information he was originally provided with, including the August 2016 statement, was that the damage that could be seen and the photographs taken by the plaintiff were '… consistent with (the plaintiff's) general description of the circumstances'.
There is more than a degree of irony arising from the fact that, as will be seen, the plaintiff sought to resile from much of the statement signed by her, with which Professor Anderson was briefed.
While I prefer the evidence of Professor Anderson, he was candid in admitting the limitations in the exercise that he carried out. In my view, even his evidence adds little to what can be seen in the photographs.

The attack on the plaintiff's credibility

Since 24 December 2014, the plaintiff has made several statements relating to matters connected to the claimed accident. The statements are found in the OCR made by the plaintiff on 27 December 2014, the claim by her on about 7 January 2015 for payment on a comprehensive motor vehicle insurance policy (the 'property claim'), notes made by her doctors during consultations, a claim for payment on 20 February 2015 on a policy of insurance (the 'QBE claim') taken out as a requirement of a loan she had obtained, and in a formal statement prepared by an investigator on behalf of her lawyers, signed by the plaintiff in August 2016 (the 'August 2016 statement').
Based on these and certain other materials, the plaintiff was cross‑examined about various assertions she had made. These included (among other things) that, prior to 24 December 2014 she had no problems with her back, that on and following that date she suffered increasing, debilitating back problems that led her to seek medical attention soon after 24 December 2014, that she was disabled or claimed to be disabled when making the QBE claim, and the nature of her relationship with the claimed witness to the accident, Sian Ewert.

Did the plaintiff injure her back - or not - in the claimed motor vehicle accident?

I was not asked to determine as an issue in this trial whether the motor vehicle collision on 24 December 2014 caused the plaintiff to be injured, in particular whether her back was injured. As is plain from the statement of claim however, the plaintiff alleges that, as a result of an accident on 24 December 2014, she suffered a 'soft tissue injury and/or aggravation to soft tissue injury to the lumbar spine with L5/S1 disc protrusion impinging on the left S1 nerve route', as well as psychological issues. The statement of claim also alleges that, from 24 December 2014, the plaintiff experienced a number of disabling physical and psychological symptoms with reduced working capacity and diminished scope of employment and consequential loss of income.
In the trial before me, the plaintiff's claim that she was injured in an accident on 24 December 2014 was challenged by the defendant, in the context of the overall attack on the plaintiff's credibility.
In her cross‑examination, the plaintiff confirmed that she had signed the August 2016 statement, and that she had read it recently. When asked whether to the best of her recollection the statement was true and correct she first answered 'I'm quite sure it is'. She then glanced through the statement again, and it was confirmed that she had had a chance to read through it again. Again she was asked, 'And you're satisfied that what you have said there is true and correct?' She then reversed herself, answering 'No'. She confirmed however that, with a slight qualification, this portion of that statement was true:
Over a period of about two or three days following my accident I noticed increased levels of back pain.
The pain worsened to a point where I knew I had a problem.
Pain was increasing rapidly and at times it was quite excruciating radiating into and down my left leg. By about a week after my accident I couldn't take it any longer and I went to see my GP …
The GP she said was 'a woman by the name of Vivien Dempsey.' With respect to the timing of this attendance, the plaintiff said in cross‑examination, 'I'm not sure if it was a week or longer when I went to see the doctor.' She agreed however that whatever the time was, it was her doctor Vivien Dempsey who she went to see at the Miami Medical Centre, for the pain from the motor vehicle accident that she 'couldn't take any longer'. She was invited to clarify if it 'might not have been a week' and she answered 'No. I didn't actually write this statement.'
The August 2016 statement was in fact produced by a private investigator engaged by the plaintiff's own solicitors. At the conclusion of the statement, and immediately above the plaintiff's signature, the statement says, 'I have read the above statement and it is true and correct. The statement is given of my own free will, without any threats, promises, or inducements being made to me'.
After again confirming that she had signed this document, the plaintiff then volunteered, contrary to what appears immediately above her signature, 'I didn't read the statement fully at the time that I received it.' It will be recalled that this was the statement supplied by the plaintiff's solicitors to Professor Anderson for the purpose of his report.
There was no re‑examination about this.
The plaintiff was taken to other parts of the August 2016 statement, including a second occasion where she asserts, 'my first appointment following the accident with my GP occurred within a week of the accident'.
Despite the fact that that assertion about the timing of her first medical appointment was made twice in the August 2016 statement, the plaintiff gave evidence that she 'now' did not think that that was correct. As the records show, it was not.
I have set out above the evidence the plaintiff gave that, shortly after the accident, she telephoned police. In the August 2016 statement, the position is somewhat different. There the plaintiff is said to have first been asked by the police whether anyone was 'hurt' to which she responded 'there were no injuries. No ambulance needed to be called. At that point however I do recall that I had some back pain but I did not realise at that point just how serious it was'.
In cross‑examination the plaintiff was asked about this claim that she felt back pain 'almost straightaway after the accident'. This passage of evidence gives some sense of the manner of the plaintiff's evidence,
Is that still your evidence today? --- I can't recall saying that comment (indistinct) ‑ ‑ ‑
I'm not asking you whether you recall, I'm asking whether that is still your evidence today? --- No.
So you didn't feel back pain straightaway? --- Not to a severe extent, no. I ‑ ‑ ‑
I'm not asking whether you had back pain to a severe extent. I'm asking whether you had back pain straightaway? --- I can't recall having back pain straight away.
In the OCR (filed at a time when according to the August 2016 statement the plaintiff was experiencing 'increasing back problems'), the plaintiff said that no personal injury was involved.
In the course of her cross‑examination, the plaintiff was referred to the notes of a number of attendances by her upon medical practitioners in the period 2012 to 2015. From the notes of those attendances, and what has been accepted by the plaintiff, it is apparent that she is not someone who is reluctant to see a doctor if she has a health concern. The evidence shows that she typically seeks medical attention within a week of having a concern about something like a grazed knee or a sore neck.
In cross‑examination, the plaintiff accepted that she did not in fact attend on Dr Dempsey between 18 October 2014 and 4 February 2015. The plaintiff also agreed that her medical records show that while she attended on her general practitioners in February 2015, there is no reference, in any note made by her doctors or other medical professionals, including Dr Dempsey, of any motor vehicle accident or of any problem associated with a motor vehicle accident on 24 December 2014, until March of 2015. There was no re‑examination about this.
Although the plaintiff attended on doctors in February 2015 about her back problems, it would appear that she never suggested any connection with a motor vehicle accident until 3 March 2015, in a consultation with a physiotherapist. The notes there taken record,
Present Condition Has always had lower back pain - felt it was period pains - Car accident Christmas Eve - since then pain has been very sore and getting a lot worse. Hit from the side. Never had numbness in foot prior to car accident. Pain is more on the left side of lower back. Constant pain.

Prior back problems

In the August 2016 statement, the plaintiff claimed 'prior to my motor vehicle accident in the shopping centre carpark in Falcon, I was not suffering with back pain and had no particular problems with my back'. In her cross‑examination, the plaintiff agreed that that statement was not true. The statement is in fact wildly at odds with the truth. There was no re‑examination about this.
When it was put to the plaintiff that she had attended her general practitioner, before the accident, complaining of back pain, the plaintiff said that that attendance 'was for endometriosis'. Thus, while accepting that she complained about back pain prior to the accident, before me she sought to attribute it solely to illness rather than injury. That assertion would likely surprise the plaintiff's doctors.
The plaintiff accepted that the medical records from her general practitioners accurately showed the following:
•On 11 July 2013 the plaintiff attended at the practice of Dr Balasa. The history recorded there is 'sore neck since yesterday. Woke up with it yesterday. Works in a day care picking up toddlers'.
•On 16 June 2014 the plaintiff had a surgery consultation with a Dr Olukolu. Here the history records 'complaining of back pain after moving heavy furniture about a week ago. Tried to lie down for five days hoping it would be better, but it's not better. Back feels like it's in a knot. No radiating pain to her lower limbs. Past history of back pain'.
•On 1 August 2014 she again attended on Dr Olukolu. Here the history recorded is 'reported her back became tight again in last two days. Works as a nanny and carries children'.
•On 13 October 2014 she attended on Dr Balasa complaining of a sore lower back since June 2014. The history records 'is about seven on one to ten pain scale. Sharp pain. Hard to drive and day to day activities due to sore back. Shoots to left buttock. No tingling numbness lower limbs. Doesn't feel muscular. Worse before periods. Left work in June hence'. Dr Balasa referred the plaintiff for a 'CT lower back'. The plaintiff did not arrange to have that CT scan performed.
•On 17 October 2014 the plaintiff attended on a Dr Devine. Dr Devine recorded the plaintiff complaining of 'chronic left lower back pain. Increasing, not working currently due to pain'. The plaintiff was referred for a variety of tests including, once again, a 'CT scan, spinal, lumbar, sacral'. Again, the plaintiff did not arrange one.
•On 4 February 2015 Dr Dempsey recorded that the plaintiff had been complaining of low back pain for several years, and referred to a fractured coccyx that the plaintiff had as a child. Although this appears to be the first time the plaintiff had seen a doctor since 24 December 2014, there was no mention of a motor vehicle accident, nor of some significant increase in symptoms in the prior month. It appears that there was a referral for a CT scan.
•On 11 February 2015 the plaintiff attended on Dr Dempsey to discuss, among other things, the results of the CT scan that had by then been taken.
•On 20 February 2015 the plaintiff had a surgery consultation with Dr Olukolu. The purpose of her attendance however was in respect of a 'Centrelink certificate and insurance report' (for the QBE claim). No reference to any motor vehicle accident was recorded. The plaintiff obtained a disability certificate to obtain benefits from Centrelink, on the basis that she could not work because of her back pain.
The idea that the plaintiff could ever claim that she did not have a problem with back pain prior to 24 December 2014 is risible. She left her employment with the Goodstart Early Learning in July 2014 'as a result of … back pain'. The plaintiff however put her signature to the August 2016 statement saying that it was 'true and correct' that she had no back pain prior to 24 December 2014. Apart from the eventual unsatisfactory assertion that she 'didn't read the statement fully at the time [she] received it', there is no explanation as to how she came to put her signature on the document. There was no re‑examination on this point.

Employment history - Disabled or working, or not working?

In the course of cross‑examination the plaintiff denied that she had been working as a 'part‑time nanny' at the time of her claimed motor vehicle accident.
In the OCR the plaintiff provides these details - 'Occupation - 'Nanny' and 'Employer - Gary Hepi'.
On 7 January 2015 the plaintiff made the property claim on her comprehensive insurance policy for the damage to her own vehicle.
In the plaintiff's cross‑examination it emerged that, in seeking to be paid for the damage to her car, the plaintiff told the insurer that she was 'a part‑time nanny and uses (insured vehicle) to take child to swimming lessons …'. The plaintiff agreed that that information was correctly recorded, and that it suggested that she was doing work for which she was being paid. She said she was caring for a four year old boy. She denied however that she was in fact paid for that work. No explanation was ever offered, in re‑examination or otherwise, that would reconcile her statements about her work as a nanny, part‑time or otherwise.
At the 11 February 2015 consultation with Dr Dempsey, the doctor's notes recorded that a 'patient medical certificate' was produced and a CT scan that had been obtained for the plaintiff's spine was discussed. The notes went on to record:
Not financially secure at present … Aware of correct posture and correct lifting technique. Also aware may require discectomy. Works at Caltex. Often 9 hour shifts. Prolonged standing.
The plaintiff accepted the accuracy of what was recorded by Dr Dempsey. The plaintiff explained that she was working two shifts per week at Caltex. When asked how many weeks that employment lasted her initial answer was 'I can't remember'. When pressed, she allowed that it was 'a couple of months'.
On 20 February 2015, when the plaintiff attended Dr Olukolu, the note of that consultation described its purpose as 'Insurance paperwork, needs this for her mortgage to be paid'. The plaintiff gave evidence that it was not in fact with respect to her mortgage, but another loan for which an insurance policy had been obtained. This was the QBE claim. She was also asking for the 'Centrelink certificate'.
The plaintiff's 'Accident/Illness claim form' for the QBE claim, made 20 February 2015, became an exhibit at trial.
In this document, in the plaintiff's hand, declared by her to be 'true, correct and complete in every detail', the plaintiff advises the insurer that she became 'totally disabled (unable to return to work)' from the morning of 3 July 2014. When confronted with that fact, the plaintiff said 'I have signed that form and I don't even remember the form'. When asked whether the content of the form was true with respect to her work between July 2014 and February 2015 she answered, 'I honestly couldn't tell you at the moment'.
She was reminded that only moments before, she had given evidence about working at Caltex in the period around 11 February 2015. She was asked to explain the contradiction between that position and the claim that she had been unable to work since July 2014 she said, 'My first statement. This – I – I don't recall this particular claim form'.
While the plaintiff might not at that moment have remembered the claim form, she did remember that the QBE claim was in fact accepted and paid.
It is not possible to reconcile the information provided on the one hand to Dr Dempsey on 11 February 2015, and the plaintiff's evidence about working at Caltex, with the statements in the QBE claim. Regardless of whether the plaintiff remembers the claim form, she admitted signing it beneath the declaration that the information within it was true, correct and complete. The obvious implication is that, in seeking to obtain payment under the QBE claim, she was prepared to lie about the central fact upon which payment of the claim depended.

The missing 'witness' - Sian Ewert

In the OCR the plaintiff identified Sian Ewert as a witness to the accident. She provided Ms Ewert's contact details. In the course of her cross‑examination, the plaintiff accepted the proposition that it would have been 'helpful' to have Ms Ewert '… come along to tell her version of events'. The plaintiff also said that Ms Ewert was not going to be giving evidence and no explanation was offered as to why that might be. She was not re‑examined about these matters.
Because Ms Ewert was not called as a witness at trial by the plaintiff, the defendant submitted that an adverse inference should be drawn, relying on Jones vDunkel (1959) 101 CLR 298.
The plaintiff has said variously that Sian Ewert was in the shopping centre parking lot at the time of her accident and witnessed some aspects of it or some surrounding circumstances related to it.
By the time of the August 2016 statement, the plaintiff was claiming for personal injuries arising from the alleged collision of 24 December 2014. She was aware, at least according to that statement, that the Insurance Commission doubted the veracity of her claim and disputed, among other things, that a back injury she suffered was a result of that claimed collision.
The plaintiff was aware the Insurance Commission had obtained a statement from Ms Ewert, and viewed the claim that Ms Ewert had witnessed the accident with suspicion. According to what is contained in the August 2016 statement, the plaintiff believed that investigators for the Commission were suggesting that a close relationship or friendship had existed between Ms Ewert and the plaintiff, prior to 24 December 2014.
The August 2016 statement sets out the assertions made by the Commission's investigators, and the plaintiff's responses to those assertions. It says that the investigators had taken a statement from Ms Ewert, where she had effectively told them, among other things that '… she has known the claimant since around the time of the accident (December 2014) and they are "Facebook Friends because of this accident".'
The assertions about Ms Ewert contained in the August 2016 statement are not proof of what she in fact told investigators. Ms Ewert did not give evidence. Her statement did not go into evidence, other than as part of a bundle that was intended to show what an expert witness had taken into account in forming his opinion. The plaintiff's response to what the defendant's investigators were saying is probative however, and taken with her evidence at trial, it is useful in the assessment of the credibility of the plaintiff and her testimony generally.
The August 2016 statement records the plaintiff saying this about accident and the accusation of prior friendship with Ms Ewert:
Following the impact, my vehicle was stuck in the middle of the road.
I couldn't start it and it was not driveable.
I remember that I got out and recall looking around for assistance.
I saw a lady that I knew on a casual basis. My daughter … was at the time in Western Australia.
She now resides back in Tasmania from where we both originated.
When [the plaintiff's daughter] was in WA she used to babysit for a lady I came to know through my daughter as Sian Ewert.
I had, up to and including the date of the accident, only ever spoken to Sian on a couple of occasions when I took my daughter to her house to babysit, or when I collected my daughter after she had finished babysitting.
I had on two other occasions communicated with her on Facebook at my daughter's prompting, because one of Sian's children was celebrating a birthday and in response to a comment she had sent me about my daughter.
Other than that which I have described above, I had no contact with her prior to my accident.
The plaintiff told me, in the course of her cross‑examination, that these statements from her August 2016 statement were true.
When the plaintiff completed the QBE claim form, she gave her 'current occupation' as 'unemployed'. Her usual duties were, she said, 'childcare educator'. She was asked for the name of her previous employers in the last five years. In this section she wrote in that she held a position as a 'personal nanny' for Sian Ewert from 16 February 2012 to 9 December 2012. Thereafter from 10 December 2012 she was employed in 'childcare', the usual duties being 'lifting, bending, cleaning'.
Based on what is in the QBE claim, this last position in childcare commenced the day after she ceased to be employed by Ms Ewert and continued to July 2014. The plaintiff gave evidence that she was employed in this period by the Goodstart Childcare Centre, at Madora. Coincidentally, Ms Ewert was the manager of the Goodstart Childcare Centre at Greenfields.
The plaintiff was asked to explain the contradiction between what she had said in her evidence about her relationship with Sian Ewert and what she declared to be true and correct in the QBE claim form. Her answer was 'I don't remember this form'.
She was asked whether in fact she worked for Sian Ewert as a personal nanny in 2012. To this the plaintiff answered 'No. I did not'.
There was no re‑examination with respect to this glaring inconsistency.

The August 2016 statement also includes this,
The comments made by the investigator in his report are all based on supposition.
I was not 'friends' in a normal sense with Sian Ewert.
I hardly knew her. I did not socialise with her and my only contact with her was via my daughter. The imputation made by the investigators is insulting. I have told the truth at all times regarding this accident.
I have never been interviewed in respect of it, either by the police or by the investigators working for the Insurance Commission of Western Australia until now and not even Sian Ewert in the statement she provided to that investigator even hints at a relationship between the two of us.
What he is trying to read into the limited communication between the two of us is ridiculous.
In cross‑examination, the plaintiff was asked whether she had in fact seen Ms Ewert's statement. She initially denied having read Ms Ewert's statement, later qualified this to say that she 'did not remember' having read the statement, and then later suggested that she possibly had read the statement although she could not '… remember her statement right now'.
When the paragraph where she refers to what Ms Ewert did not 'even hint at' was drawn to her attention she said, unhelpfully, 'It was in the statement that I didn't write'. There was no re‑examination on this subject.

Failure to call a witness

The unexplained failure by a party to either give evidence, or call a witness may (not must), in appropriate circumstances lead to an inference that the uncalled or missing evidence would not have assisted that party's case: Jones v Dunkel (308, 312 and 320), cited in Heydon J D, Cross on Evidence (11th Aust ed, 2017) [1215].
Despite the fact that the plaintiff identified Ms Ewert as a witness to the accident in her OCR, she was asked no questions by her own counsel in examination in chief as to whether to her knowledge anyone witnessed or was a potential witness to the accident. She only referred to Ms Ewert in the seemingly non-responsive answer I set out earlier in these reasons.
Despite extensive cross‑examination about what it was that the plaintiff believed Ms Ewert was supposed to have seen, and the plaintiff's relationship with her, no questions were asked in re‑examination that related in any way to Ms Ewert. Those facts alone might be thought to lead towards an inference of the kind described in Jones v Dunkel.
No reason has been offered by the plaintiff or on behalf of the plaintiff for not calling Ms Ewert as a witness.
A submission made on behalf of the plaintiff was that it was equally open for the defendant to call Ms Ewert, it failed to do so, and in the circumstances no adverse inference should be drawn against the plaintiff. I do not accept that submission.
From the manner in which the defendant conducted its case, it was apparent that the defendant's position was that Ms Ewert had a reason for not telling the truth if called by the defendant. The reason was that, contrary to assertions made by the plaintiff and apparently by Ms Ewert, Ms Ewert was not truly an independent witness. There was good reason to believe that the relationship between them was considerably older and closer than the plaintiff was prepared to admit.
The fact that a particular party has a sensible reason for doubting the veracity of a particular witness, or a basis for belief that the uncalled witness is likely to be favourable to the opposing party, is a legitimate explanation for the failure of that party to call that witness: Spence v Demasi(1988) 48 SASR 536, 537 and 548 (FC), cited in Cross on Evidence at [1215].
I conclude that it is appropriate to draw an inference that, although the plaintiff identified her as a witness to the accident, Ms Ewert's evidence would not have assisted the plaintiff's case.
At the conclusion of the plaintiff's re‑examination, I asked some questions to try to gain a better understanding of the plaintiff's evidence about the sequence of events in the aftermath of the collision that she described. She told me that Ms Ewert's car was parked about 50 m away from where the plaintiff's Volvo finished up.
I was interested to know how she had come upon Ms Ewert who was parked 50 m away in this busy, morning of Christmas Eve, shopping centre parking lot. I sought to clarify why, in those circumstances, if she wanted someone to help her push her vehicle out of the way, it was necessary for her to walk something in the order of 50 m through a hot parking lot, and why she chose to go in the direction that she did. I asked, 'Why did you walk over there?' To this she responded 'because I was searching around for someone to help, I ‑ she has an extremely distinctive blue car, she had a bright blue car and I had seen the colour through - from where I was standing and I had gone over to her, she is the only person I recognised'.
I asked the plaintiff whether she had been prepared to ask a stranger to help her, and to this she answered 'I was prepared but I did not ask, every - there was no - not a particular person to stop and say, "help me push my car".' I asked her then if she had to walk 50 m before she could speak to someone, and ask them to help her shift her car. To this she answered 'I did not have to, that - that is what I did because I saw the colour of her car. Everyone was standing around as if they did not want to be involved'.
Earlier in my questions, I was interested to learn to what extent it was possible for Ms Ewert to have seen the claimed accident site from where Ms Ewert had parked her car, on the assumption that the plaintiff had walked to that same spot. I asked whether from that spot it was possible for Ms Ewert to have seen the plaintiff's car. To this she answered 'not clearly ‑‑‑ there's cars and trees, I don't know if - how she could see it'.
No further questions were asked by way of additional cross‑examination or re‑examination in light of my enquiries. It never became particularly clear how it was that the plaintiff could recognise Ms Ewert's car, even with its 'distinctive colour', from 50 m away with the obstacles of trees and other cars, when it was difficult for Ms Ewert to see the plaintiff's vehicle. Her evidence as to how and why she came upon Ms Ewert seems implausible.
The plaintiff identified Ms Ewert as a witness in her very first report of the claimed accident. Later when she became aware that Ms Ewert's independence as a witness was being challenged, the plaintiff staunchly maintained that there was no 'real' personal relationship between them.
The true significance of Ms Ewert in the assessment of the plaintiff's case goes beyond the simple conclusion that a Jones v Dunkel inference can be drawn. I conclude that the plaintiff was not telling the truth when she claimed only a slight and relatively recent acquaintance with Ms Ewert. That begs the question as to why she would do so. It is not possible to answer that question with any degree of certainty, but the mere fact that it needs to be asked adds to the real disquiet that I have about the truthfulness of the plaintiff generally.

Conclusions

The plaintiff is the only witness as to the actual happening of the claimed accident on 24 December 2014. No other witness was called as to the happening of the occurrence the plaintiff has described.
If the accident occurred in the manner described by the plaintiff, it would be difficult to see how it could not be the sole fault of the other driver. That is a conclusion that I am able to reach without the assistance of five pages of submissions about the Civil Liability Act2002 (WA) and basic principles about duty of care, breach of duty, and contributory negligence. The more difficult question, and one on which the submissions of the plaintiff are entirely silent, is why I should accept the evidence of the plaintiff about the accident as truthful and reliable, when she has been shown in so many other respects to be untruthful, and unreliable.
I am asked to find the unknown driver liable, not simply for some sort of accident where some sort of damage was caused to the plaintiff's Volvo, but for the accident that the plaintiff has pleaded and described in her evidence before me. Before I could conclude that that accident occurred, or to put it another way, that an unknown driver drove into the plaintiff while she was driving her car in the way she claimed, I would have to be satisfied that the plaintiff's evidence about the location and manner of the accident was probably true. To put it still another way, I would need to be satisfied that the plaintiff was probably an honest and reliable witness as to those matters. There is very limited evidence that tends to corroborate what the plaintiff has said on those subjects.
The pleaded admissions by the defendant would allow me to conclude that there was some kind of an incident between the plaintiff's Volvo and a vehicle driven by an unknown driver on 24 December 2014. That does not take things very far.
An argument made on behalf of the plaintiff was that I could infer that, because the other driver did not remain at the scene of the accident, they were at fault for that accident. Flight as consciousness of guilt is an issue that sometimes arises in criminal trials. The plaintiff did not rely on or refer to any authority where flight as consciousness of guilt (or liability) has been accepted in a civil trial. I am not aware of any such authority. Assuming that 'flight' is a potentially probative piece of circumstantial evidence in a case such as this, it still needs to be assessed against all other facts and circumstances that the trier of fact is willing to accept.
There are the photographs of damage taken by the plaintiff on the days after the accident. The damage that can be seen, on the front left of the plaintiff's Volvo, is generally consistent with the kind of accident that she described. It is consistent with the damage that could be caused by a driver failing to yield right of way to another vehicle.
Part of the difficulty is in establishing which of the damage seen in the photographs can or could be attributed to any incident on 24 December 2014. The plaintiff's evidence does not inspire confidence on that point. Mr Allen was asked nothing about what he saw. After the Volvo was towed by him it remained for at least several days in a vacant lot.
The expert opinion that was provided at trial does not add a great deal to what can be seen in the photographs themselves. I have already explained why I place no reliance on the conclusion of Mr Simms.
While Professor Anderson's conclusions broadly support an accident of the kind described by the plaintiff, his opinion also has the limitations that he acknowledged. First, there is some question as to whether in fact all of the marks that can be seen on the front left of the plaintiff's vehicle can be attributed to an accident of the kind described. Second, the conclusions that he was able to reach were limited by the fact that all that he had was somewhat indifferent photographs of just one of the vehicles said to be involved. No physical inspection was possible.
Professor Anderson's conclusion was that the impact suggested that the direction of travel of the other vehicle was from the left side but at an oblique angle towards the front of the plaintiff's Volvo. The markings made by the plaintiff on exhibit 1 tend to show an accident that was virtually broadside, that is at 90 degrees, or slightly from the opposite direction to what can be inferred from the photographs.
The evidence of Mr Allen provides some support for the plaintiff's evidence about the accident, at least as to time and place. His description of the plaintiff coming to the door of his niece's house in an upset condition is consistent with the plaintiff's description of having been involved in an unanticipated collision in some form, if the upset was genuine. The fact that the plaintiff was upset is neutral as to the question of fault for any accident. Nor would I place a great deal of weight on the fact that the plaintiff was seemingly blaming the other driver.
Mr Allen described finding the plaintiff's car just past the intersection where the accident occurred. By reference to the photograph, exhibit 12, Mr Allen identified the place that he found the plaintiff's Volvo as being just out of frame to the right of the intersection where the plaintiff said the accident happened. The plaintiff by contrast said in her evidence‑in‑chief that she had left her vehicle 'near the ramp leading to Woolworths'. A loading ramp can be seen in exhibit 12 virtually in the centre of the photograph, leading to a loading bay. If that was what the plaintiff meant by 'the ramp leading to Woolworths' then there is arguably an inconsistency between what Mr Allen said and what the plaintiff said about where the Volvo was left.
No‑one asked the plaintiff to identify where, by reference to any photograph, she had left her Volvo. To the extent that there is that inconsistency between what Mr Allen said on the subject and what the plaintiff said, that would not of itself lead me to question the honesty of what the plaintiff said. It would normally at best go to the reliability of a detail. The difficulty is that I hesitate to accept anything that the plaintiff says about where exactly the accident occurred, and the drivability of her vehicle in the immediate aftermath of the incident.
Mr Allen, while he said that the plaintiff's Volvo was not 'drivable', did not give evidence as to why he reached that conclusion. He gave no evidence as to what damage he observed at the time.
Despite that, given the admissions made by the defence, Mr Allen's evidence, the photographs of the damage and the opinion of Professor Anderson, I can conclude that the accident might well have happened in the way the plaintiff described. I am not however able to conclude that it probably occurred in the manner and place and circumstances described by the plaintiff. I do not accept what she has said about her manner of driving or that she was in fact driving at the time, the manner of driving of the 'unknown driver, or the damage her car sustained on 24 December 2014.
The evidence about the 'flight' of the other driver is subject to the same shortcoming. To the extent that any inference to be drawn relies on acceptance of the plaintiff's evidence of the young man in the 'hoody' driving off after running into her car as she drove it, I am not willing to accept the plaintiff's evidence. Of course, someone with a 'guilty mind' who damages an unoccupied parked car may choose to leave the scene of an accident without leaving identifying details. Or, someone who is not authorised to drive, or driving an unlicensed vehicle or a stolen vehicle may not care to remain at the scene of an accident, even if they regard themselves as not to blame, or not wholly to blame. I do not draw the inference that because the other driver is unidentified that the accident probably occurred in the manner described by the plaintiff.
I conclude that the plaintiff was not truthful with respect to material issues in the evidence that she gave before me. While it might be said that the plaintiff has been generally consistent in her description of the accident, from the time of her complaint to Mr Allen, even if I were able to have regard to that evidence of 'complaint' in a case like this, it goes only to credibility.
That is not sufficient to overcome the very strong reservations I have about the truthfulness of the plaintiff. She has put her name to a number of claims that have been shown to be false. It is true that in her evidence before me the plaintiff resiled from some of the claims made in the August 2016 statement. That was done however in the face of overwhelming and incontrovertible evidence. Even then, in trying to avoid the consequences of assertions so patently false, she tried to take refuge by claiming in her evidence 'I didn't read the statement fully at the time that I received it.' That was despite her signature appearing beneath statements that she had read the document and that it was true and correct.
That evasion was of a piece with her response when confronted with another lie. Her evidence before me was that she had been working for Caltex in February 2015. On 20 February 2015 she made a claim on an insurance policy, declaring it to be true that she had not worked since July 2014. That was patently false. Again, notwithstanding her declaration to the contrary, her evidence before me was 'I have signed that form and I don't even remember the form.' I should also add that her evidence that she was not paid for her work as a nanny, contrary to the plain meaning of other documents that she signed, is highly improbable.
I am not satisfied that the plaintiff is a witness of truth with respect to the material circumstances of the accident she alleges she was involved in on 24 December 2014. It follows that she has not proved her case with respect to the matters in issue in the trial before me.
I will hear from the parties in respect to the orders to be made and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JH
ASSOCIATE TO JUDGE O'NEAL
29 NOVEMBER 2018