Singler v Ferguson

[2015] NSWDC 38

District Court

New South Wales

Medium Neutral Citation:	Tony Singler v Jeffrey Ferguson [2015] NSWDC 38
Hearing dates:	5-8 May 2014, 19-21 August 2014, 25, 26 and 29 August 2014 and 19 February 2015
Date of orders:	01 April 2015
Decision date:	01 April 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for the defendant
Catchwords:	Torts – motor vehicle accident – burden of proof – adverse findings of credit - assessment of damages – psychiatric injury
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Evidence Act 1995 (Cth) Civil Liability Act 2002 (NSW)
Cases Cited:	Adeel’s Palace Pty Limited v Moubarak (2009) 239 CLR 420 Browne v Dunn (1893) 6 R 67 Curtis v Harden Shire Council [2014] NSWCA 314 Dungan v Chan [2013] NSWCA 182 Fox v Wood (1981) 148 CLR 438 Jones v Dunkel (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Manley v Alexander (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Nominal Defendant v Bacon [2014] NSWCA 275 Shoalhaven City Council v Pender [2013] NSWCA 210 Shorey v PT Limited (2003) 197 ALR 410 Sibley v Kais (1967) 118 CLR 424 Singler v Ferguson [2010] NSWCA 325 Singler v Ferguson [2009] NSWDC 88 State of NSW v Fuller-Lyons [2014] NSWCA 424 Strong v Woolworths Limited (2012) 246 CLR 182 The Nominal Defendant v Ross (No 2) [2014] NSWCA 370 Warth v Lafsky [2014] NSWCA 94
Category:	Principal judgment
Parties:	Tony Singler (Plaintiff) Jeffrey Ferguson (Defendant)
Representation:	Counsel: Mr B Toomey QC with Mr M Eirth (Plaintiff) Mr P Cummings SC with Mr M Weightman (Defendant) Solicitors: Bale Boshev Lawyers Moray & Agnew
File Number(s):	04/188288
Publication restriction:	Nil

Judgment

Introduction

1. By an Amended Statement of Claim filed on 27 December 2013 the plaintiff claims damages for injuries suffered by him in a motor vehicle accident on 7 April 2003.

2. By an Amended Defence filed on 24 January 2014 the defendant denies that he was negligent and pleads that the plaintiff’s injuries were caused or contributed to by the plaintiff’s own negligence. By leave granted on 25 August 2014, a Further Amended Defence pleads that the plaintiff failed to mitigate his damages said to arise from a reduced capacity to work

3. The motor vehicle accident occurred at the intersection of Maitland Road and Silsoe Street, Mayfield at approximately 7.45am on 7 April 2003. The intersection was controlled by traffic lights. Maitland Road is a major arterial road running generally west to east, and is one of the main roads for traffic heading into Newcastle City. Silsoe Street runs generally from south to north to its intersection with Maitland Road. To the north of the intersection Silsoe Street became Carrington Street. Both the plaintiff and the defendant, claim to have entered the intersection with a green light facing them.

4. Following a trial that took place over nine days in 2008, Judge Sidis delivered a judgment on 15 May 2009 in which she found a verdict and judgment for the defendant. On appeal to the Court of Appeal, that verdict and judgment were set aside (see Singler v Ferguson [2010] NSWCA 325), and the matter was remitted to this court for rehearing. That rehearing took place over two sittings of the court at Newcastle, and occurred over nine days in May and August 2014. The submissions were completed in Sydney on 19 February 2015.

5. On 17 May 2013 a review panel of the Medical Assessment Service (“MAS”) issued a certificate which assessed the whole person impairment of the plaintiff at 4%. This meant that the plaintiff was not entitled to an award of damages for non-economic loss, pursuant to s 131 of the Motor Accidents Compensation Act1999 (NSW) (“MACA”).

6. On 5 May 2014, at the commencement of the trial, the plaintiff, through his Queen’s Counsel, sought an order rejecting that assessment, and an order to have the court reassess the plaintiff’s whole person impairment, or alternatively, an order that the matter be referred back to the MAS for assessment. That application was dismissed (see separate judgment and reasons delivered on 19 August 2014).

7. By consent, the evidence in the first trial, including the transcript and exhibits, were tendered in the trial before me. In addition, both the plaintiff and defendant gave oral evidence and were cross-examined. The defendant also required for cross-examination Mr Grant Johnston, consulting engineer, Dr John Bentivoglio, orthopaedic surgeon, and Dr Jonathon Phillips, consultant psychiatrist. Dr Bentivoglio gave his evidence by telephone.

8. On the issue of liability, it is necessary to set out the evidence of the plaintiff and defendant given at both trials, and the evidence of a Mr Lewis, who was a passenger in the defendant’s car, which was given at the first trial. The defendant did not call Mr Lewis at the second trial.

The Plaintiff’s Evidence as to Liability at the First Trial

9. At the first trial on 26 May 2008, the plaintiff gave evidence that he was travelling north along Silsoe Street towards the intersection of Maitland Road at 50 kph. He gave the following evidence:

“Q: And as you got towards the intersection what light was being displayed by the traffic control lights?

A: I had the green.

Q: And as you proceeded towards the traffic control lights what did you observe at the intersection in front of you, if anything?

A: That there was two cars on the right hand side next to each other in the two lanes heading west.

Q: Were they stationary?

A: Yes they’ve got the red lights. And there was a car on the inside lane heading west stopped at the lights.

Q: Heading west or east?

A: Heading east …

Q: As you proceeded through the lights, as it were, into the intersection, did you observe something occur?

A: The lights changed to orange as I’m crossing the intersection, so I didn’t sort of back off. I couldn’t have stopped. I was actually into the intersection at that time.

Q: Yes?

A: And then the four-wheel drive ute swerved around the stationary car parked on the inside lane and entered the intersection across in front of me.

Q: And did you apply your brakes?

A: I hit the brakes yes.

Q: And did that vehicle – did it appear to endeavour to slow down?

A: No.

Q: When you first observed it, how far was it away from this vehicle that was stationary in the inside lane?

A: Very close.

Q: And was that the first occasion you observed it?

A: Yes.

Q: An impact occurred. What portion of your vehicle came into impact or what portion of the other vehicle came into impact with you?

A: He came across in front of me and the front of my car collided with his driver’s door and the back tray.”

10. The plaintiff gave evidence that he spoke to the driver of the other car following the collision. He gave this evidence:

“Q: And what did he say?

A: He just said, you know – I said to him, ‘Was that a good – that’s a good start to the morning’, and he asked if it was red and I said ‘Yeah, mate. You went through a red light’.

Q: And what did he say to that?

A: He said went, ‘Oh’ and walked off. Yeah.”

11. The plaintiff then gave evidence that whilst standing on the footpath he heard the driver say to his passenger:

“Q: What was it you were able to hear?

A: That, ‘When the police come we’ll tell them we had the green. There’s two of us. There’s only one of them. No witnesses stopped.”

12. The plaintiff gave evidence that no other vehicles stopped following the accident. When the ambulance arrived they wanted to take him to hospital but he refused to go because of what he heard the other driver say. He wanted to make sure that he saw the police first and he made a statement to the police. That statement (exhibit 4) read as follows:

“I was travelling nth in Silsoe St about 50kph. The traffic lights were green as I approached the traffic line the traffic lights turned yellow. I proceeded to go thru. A white ute travelling east on Mait Rd collided with the front of my car. The driver of the car approached me and said ‘was that red?’ I said ‘yes’.”

13. In cross-examination the plaintiff agreed that until he was right at the intersection it was difficult to see what was coming at all from his left on Maitland Road. He agreed that he did not back off as he entered the intersection and that his speed was 50 kph constantly right through the intersection. He denied being in a hurry to pick up a workmate. The defendant’s case was put to the plaintiff as follows:

“Q: And what happened with you Mr Singler is that as you approached the lights you made an assessment that the other cars in Maitland Road were stationary and you’d be able to get across in front of them, even though the light had turned red in your direction?

A: No.

Q: That’s what happened isn’t it?

A: No.

Q: And what you didn’t take into account of was the fact that there was a vehicle moving in Maitland Road from your left to right, that is, in an easterly direction, which was coming towards the lights and was moving at the time that they changed to green. That’s what you didn’t take into account of, wasn’t it?

A: No.

Q: And what I want to suggest to you is that the defendant’s vehicle in fact came through a green light that had just changed to green, that you came through a red light and that’s how the collision occurred?

A: Do not agree.”

14. It was put to him that the conversation with the other driver, about which the plaintiff gave evidence in chief, never occurred, with which the plaintiff did not agree.

15. It was put to the plaintiff that the defendant’s four-wheel drive vehicle was going a bit slower than his vehicle through the intersection, with which he disagreed. The plaintiff had given evidence that the four-wheel drive vehicle was going “fairly fast” and was challenged in cross-examination about that answer. It was put to him that he had never before giving that evidence suggested that the other car was travelling fast. He said he was not sure.

Defendant’s Evidence as to Liability at the First Trial

16. The defendant gave evidence that he was driving a white Toyota Hilux work vehicle with a load of sand on the back tray. It was a 2.4 litre capacity petrol engine and he had stopped in Fawcett Street while his passenger, Mr Les Lewis, retrieved something from his residence and then the vehicle proceeded from Fawcett Street to turn left into Maitland Road. There were two lanes in Maitland Road and he proceeded in the lane nearest to the kerb. He observed the lights at the next intersection to be red for vehicles travelling in his direction (east) on Maitland Road and he observed a vehicle stationary in lane one at those traffic lights. He gave the following evidence:

“Q: And you said you drove towards the back of that car?

A: Yes.

Q: Is that right and what happened as you did that?

A: I was slowing down because the lights were still red, I was doing maybe 30-35k’s.

Q: Yes?

A: Then the lights changed green.

Q: Yes?

A: I changed into the right lane or the fast lane or lane number 2.

Q: Were there any other vehicles in that lane?

A No.

Q: And how did you go about changing into that lane?

A: I indicated and moved – checked my blind spot and moved into the right lane.

Q: Alright, what happened then?

A: I continued into the intersection doing approximately 45kph.”

17. The defendant gave evidence that the stationary vehicle in lane one had started to move but he was in the middle of the intersection when he observed that. He gave the following evidence:

“Q: Alright and as you came into the intersection what speed were you doing?

A: 45k’s

Q: And what happened?

A: Another vehicle, I think it was blue or a grey Commodore, collided into the side of me.

Q: Which side did it collide?

A: In the driver’s side.

Q: And where did it come from, did you see?

A: It came from Silsoe direction, heading towards Carrington Street. I think they’re the names of the streets.

Q: Did you see this vehicle that collided with you before the collision?

A: Oh half a metre, half a metre, just a peripheral vision, out of the corner of my eye I seen a vehicle. You can’t move a car that quick.

Q: I’m sorry, I missed the last bit of your answer?

A: Yeah, it was probably just out of my peripheral vision. They may have been 2 metres away, 1 metre away, before I actually spotted him, but I can’t move a car that quick.

Q: Okay. When you came through the intersection what colour was the traffic light facing your direction?

A: Green.”

18. The defendant gave evidence that because his vehicle was blocking the intersection when it came to a rest, he moved it and parked it in Carrington Street. He then went and spoke to the other driver. He gave the following evidence:

“Q: And when you went, where was the drive of the other vehicle when you went over to see?

A: Standing alongside his car.

Q: Did you have a conversation with him?

A: No. I did speak to him but I got no reply.

Q: What did you say to him?

A: I went over to him and seen if he was okay.

Q: Yep?

A: And then I said to him ‘Mine was not red’.

Q: And did he say anything to you?

A: No.”

19. The defendant then gave evidence that the driver later came over to him and spoke to him:

“Q: What did he say to you?

A: He told me that his light was yellow, somewhere in the conversation.

Q: Yes?

A: And he was running late for work.”

20. In cross-examination the defendant estimated that the distance between the intersection at Fawcett Street and Silsoe Street was about 60 metres.

21. He described his driving as follows:

“A: There was 60 metres to travel, I come out of the street at Fawcett Street, my speed may have reached 35, between 25 and 35, I was braking to slow down behind the van that was stopped. The lights changed green, I changed to the right hand lane and proceeded through the intersection and that’s when the accident occurred.”

22. The defendant was further cross-examined as follows:

“Q: You should have been preparing to stop your vehicle, but instead of that you increased its speed and decided to run the light, didn’t you, when it was red?

A: No.

Q: When you come to that intersection and you look to the right, your view is obscured in respect of vehicles that are coming out of I think Carrington Street or Silsoe Street?

A: Silsoe.

Q: Is that not correct?

A: It is impeded.

Q: Yeah?

A: But when you’ve got a green light, sometimes you don’t always check the intersection.

Q: And you see how far were you from the lights when you say the lights changed to?

A: I was approximately four car lengths behind the blue stationary vehicle in the same lane. I changed lanes and then increased my speed.

Q: And you see, you say that – did you look to see whether anyone was coming out of Silsoe Street?

A: I had a green light and I’m sure not everybody checks every single side street they drive up.

Q: You didn’t have a green light all the way, though, did you?

A: Yes.

Q: What, from when you came out onto the roadway?

A: From Fawcett Street.

Q: Yeah it was red?

A: It was red but that’s 60 metres away.

Q: Yeah it stayed red right up until the time that you swerved around the back of vehicle in front of you and went through the intersection, isn’t that correct?

A: I’ll get you to explain that one again because I was thinking about--

Q: It remained red until the time that you decided to swerve around the vehicle that was stationary at the lights and proceed through the intersection when the light was red, isn’t that correct?

A: No. It was red until I was four or five car lengths behind the blue van, before – I changed lanes when the light turned green.

Q: The vehicle that was in that lane, the van in front of you, when you passed it by it was still stationary at the lights, wasn’t it, because the light was red?

A: It was rolling off the mark.

Q: And you see, you say you didn’t see the other vehicle until it was virtually right upon you, is that correct?

A: The one I had the accident with?

Q: Yeah?

A: Yes.”

23. It was put to the defendant that he swerved around the vehicle in lane one on Maitland Road so as to avoid a rear-end collision. He denied that proposition. It was then put that he ran the red light because he had not observed any vehicle coming along Silsoe Street on his right. He denied that proposition.

24. The defendant also denied that the plaintiff had said to him following the collision “You went through a red light.” The defendant could not recall the whole of the second conversation he had with the driver because it was five years beforehand.

25. In re-examination the defendant gave evidence that when he came out of Fawcett Street and first turned into Maitland Road, his speed was probably 10 kph as he turned the corner. He was doing 45 kph by the time he got to the intersection.

26. The passenger in the defendant’s car, Leslie Lewis, also gave evidence at the first trial. He was travelling with the defendant to their second job of the day and stopped at the Beaufort Hotel on the corner of Maitland Road and Fawcett Street so that he could retrieve his mobile phone. When he returned to the vehicle the defendant proceeded to turn left from Fawcett Street into Maitland Road, heading east towards Newcastle. He estimated the speed at which the defendant drove around the corner into Maitland Road at 20 kph. He estimated that the distance between Fawcett Street and the intersection of Silsoe Street and Maitland Road was 100 yards. They were travelling in lane one and there was a vehicle stopped at the red lights in Maitland Road in front of them in that lane. He gave the following evidence:

“Q: As you proceeded along Maitland Road towards this Tarago, what did Jeff do?

A: The lights changed green and Jeff proceeded to the other lane and we went through the intersection.”

27. Mr Lewis gave evidence that as he did that, the defendant changed his speed as he drove towards the intersection “just up a bit”. The vehicle was 20 yards away from the intersection when the lights changed to green and the defendant drove into the intersection at 40 kph. When asked what happened when the vehicle drove into the intersection he said:

“A: We just heard a screech and a bang.”

He did not see the plaintiff’s vehicle at all before the accident. He gave this evidence in relation to the other driver:

“Q: Where did you see him?

A: He got out of – he alighted from his car, walked up to the side where Jeff and I worked.

Q: Was there any conversation involving that man?

A: ‘I’m running late for work’ and ‘This is my brother’s car’.”

28. In cross-examination Mr Lewis gave evidence that when the lights changed, the blue Tarago in lane one was stationary, but that he moved off and then the defendant’s car went around him. He gave evidence that the defendant was three car lengths behind the blue van when he changed lanes. Prior to that the lights had been red.

29. With respect to his estimates of speed of the vehicle, Mr Lewis said that he did not actually look at the speedometer, and that the vehicle could not drive off quickly with the gear on the back tray. He gave evidence that the speed of the vehicle increased on Maitland Road from 20 kph to 40 kph before the lights changed. He gave further evidence that as the vehicle changed lanes the lights turned to green. He was not trying to protect the defendant and he had spoken to the police about the accident.

30. In re-examination Mr Lewis gave evidence that he worked for Mr Ferguson for 12 months after the accident but had no ongoing contact with him.

The Plaintiff’s Evidence at the Second Trial

31. The plaintiff gave the following evidence on 6 May 2014:

“Q: As you approached the intersection from the south, what was the state of the traffic lights?

A: I got into a green and they turned orange as I’ve crossed the intersection.

Q: What do you next remember happening?

A: I noticed there was two cars stationary heading west at the red light and a car on the left lane heading east on the left. Then the four-wheel drive sort of swerved around that car and then came straight across in front of me.

Q: Where was your vehicle when you saw the four-wheel drive come into the intersection?

A: I daresay the car would have been fully just inside the intersection itself, so a couple of metres into it.

Q: What was the state of the lights at that time?

A: I had the orange.

Q: What part of his car did you hit?

A: It was a single cab ute, so I’ve got sort of his front door and the tray on the back …

Q: I think you’ve told His Honour that you entered the intersection as the – I’m sorry – that the orange light changed at a time when you were so close to the intersection that you had to go through?

A: It changed from green to orange as I crossed into the intersection, yes …

Q: And when you got out of the car did you speak to a man whom you believed to be the driver of the other car – other vehicle?

A: I did, yes.

Q: And what did you say?

A: I sort of said ‘Oh it’s a good start to the day’ and then he asked me ‘Did I go through a red?’ and I said ‘Yes you did’.

Q: And what did he say?

A: He just sort of walked off then. …

Q: When did you first see the utility with which you collided?

A: When it was swerving around the car, the stationary car.

Q: And where were you then?

A: Just in the intersection.

Q: And are you able to tell us the colour of the light for you when that other vehicle entered the intersection?

A: Orange.”

32. The plaintiff gave further evidence:

“Q: Now I think you told us yesterday that you heard a conversation between the driver and his passenger in the ute?

A: Yes.

Q: Was that conversation indirectly the cause of you staying until the police officer arrived?

A: It was.

Q: Why?

A: I overheard them saying, ‘We’ll tell the police that we had the green light, there’s two of us. There’s only one of him’.

Q: And you wanted to make sure the police heard that?

A: Yes, because no one else had stopped so there were no witnesses.”

33. In cross-examination the plaintiff agreed that he was on his way to pick up a work colleague from Tarin Street Mayfield. He also agreed that he was going via an indirect route so that he could stop at a shop called Ingall Street Takeaway to get a drink. He gave this evidence:

“Q: And you were due to start work at 8 o’clock in the morning?

A: Yes.

Q: You didn’t have much time up your sleeve if you wanted to be on time for work that morning, did you Mr Singler?

A: No.

Q: I want to suggest to you that, with all the things that you had to do, stopping, getting a drink, picking up Alex and getting to work by 8 o’clock, you were in a hurry when you were proceedings down Silsoe Street weren’t you?

A: No. …

Q: So you had the potential of being late that morning didn’t you?

A: Alex is always late, so I wasn’t too concerned.”

34. The plaintiff agreed that as he approached the intersection his speed was constant and his estimate was 50 kph although it could have been a kilometre or two more.

35. The plaintiff agreed that at the first trial he had given evidence that it was very difficult to see to his left along Maitland Road from Silsoe Street until he was practically right on the intersection line. He confirmed the evidence that he had given previously, namely, that the lights changed to orange as he was crossing the intersection. He also gave evidence that he saw the four-wheel drive vehicle of the defendant for the first time when it was behind the dark blue car in lane one, and saw it leave its lane and move into lane two. He gave this evidence:

“Q: Before we get to the swerve, when you first saw it, it was behind the stationary car. Correct?

A: Well, when I first saw it, it was swerving.

Q: Let’s be perfectly clear about it. Did you see it in the left hand lane or did you not?

A: It swerved out of the left lane.

Q: If you saw it swerve out of the left lane, you must have seen it in the left lane, musn’t you?

A: Essentially, yes. …

Q: At the time you say you first saw the four-wheel drive car, you were committed to travelling through the intersection. Correct?

A: Yes.

Q: And all this happened you say, I take it, in a split second?

A: Seconds, yes.

Q: It didn’t take a couple of seconds for you to get from the holding line of the intersection of Silsoe Street to the point of impact, did it?

A: No.

Q: It didn’t take you a couple of seconds to get from a position some metres from the intersection to the point of impact, did it?

A: No.

Q: It probably took about half a second or less, didn’t it?

A: Approximately, yes.

Q: And in that half a second, you say you saw a car in the left lane, on your left, move out of its lane into the right lane, come past the stationary vehicle, travel the distance that was required from the holding line on Maitland Road and get in front of your car?

A: Yes.

Q: That’s just a nonsense, isn’t it Mr Singler?

A: No.

Q: What I want to suggest to you, Mr Singler, is that on that morning, you made a terrible misjudgement when you came up Silsoe?

A: I disagree.

Q: You were anxious to get across the intersection as you came up Silsoe Street weren’t you?

A: No.

Q: You saw a car stationary to the right didn’t you?

A: Yes.

Q: As you came towards the intersection you saw a car stationary to the left?

A: Yes.

Q: The light changed to red and you crossed that intersection on the red light didn’t you?

A: No.

Q: What you didn’t do was take into account the fact that there was a vehicle coming on your left that was already in motion and not stopped at the traffic lights. Isn’t that right?

A: No.

Q: And what happened was that that vehicle came through a green light into the intersection and you ploughed into the side of it, didn’t you?

A: No.”

36. It was put to the plaintiff that his evidence about overhearing a conversation between the defendant and his passenger to the effect that they would say they had a green light, was a fabrication which he denied.

37. The plaintiff gave evidence that he told the police that he had overheard that conversation. The policeman had written things down in his notebook and he had signed that notebook as being complete and true. The statement in the notebook, which became exhibit 4, did not contain any reference to a conversation between the two occupants of the defendant’s car. The plaintiff gave this evidence:

“Q: If there had been a conversation along the lines that you allege between the other two men, you would have ensured the policeman put that in your statement, wouldn’t you?

A: I’d assume so.

Q: If there was any suggestion that the vehicle with which you collided was travelling at an excessive speed, you would certainly told the policeman about that, wouldn’t you?

A: Yes.

Q: It wasn’t travelling at an excessive speed by any stretch of the imagination was it, Mr Singler?

A: Yes it was.

Q: How fast do you say it was travelling?

A: It’d be very close to 60.

Q: I want to suggest to you that it was travelling at a speed of about 40-45kph as it came through the intersection. What do you say about that?

A: Well I can’t be sure.

Q: What was your answer?

A: I don’t know his exact speed, no.

Q: I want to suggest to you that the other vehicle was travelling at a range of 40-45kph as it went through the intersection?

A: I’d say it’d be a bit faster than that.

Q: You’d say it would be a bit faster?

A: Yes.

Q: If I can suggest this, you don’t sound very committed about that. Would you be prepared to accept that it may have been a speed as low as 40-45kph?

A: No.

Q: You say do you, about 60?

A: Yes.

Q: If the other vehicle had been going in excess of the speed limit, to your estimation or observation, you certainly would have told the police officer about that wouldn’t you?

A: Yes.

Q: The fact of the matter is; you never complained to anybody, in all the versions that you’ve given about this accident, that the other vehicle was travelling at any particularly high speed, have you?

A: No, I don’t agree with that.

Q: You don’t agree with that?

A: No. …

Q: Mr Singler what I want to suggest to you is that you did have a conversation with Mr Ferguson, the driver of the other vehicle, after the accident, but it was not in the terms that you have told His Honour about, and what I want to put to you was that Mr Ferguson said to you – the first thing he said was you was words to the effect, ‘Are you okay?’ Do you agree with that?

A: No.

Q: And that Mr Ferguson said to you, ‘Mine was not red’?

A: No.

Q: What I want to suggest to you is that you went over to where Mr Ferguson and his passenger, Mr Lewis, were standing and said ‘Mine was yellow. Mine was yellow’. I’m suggesting to you that you said to the others, that is to Mr Lewis and Mr Ferguson, ‘Mine was yellow”?

A: I can’t remember that.

Q: You also said to Mr Lewis and Mr Ferguson that you were running late for work. You also said to Mr Lewis and Mr Ferguson that the car you were driving was your brother’s car?

A: No.

Q: It was, in fact, your sister-in-law’s car wasn’t it?

A: Yes.”

38. The plaintiff was further cross-examined about the circumstances of the accident on 8 May 2014. He gave the following evidence:

“Q: You said yesterday to His Honour that you saw the Hilux utility ‘swerve’ as you put it, around the stationary vehicle. I want to suggest to you, you did not see that?

A: I disagree.

Q: I want to suggest to you that you didn’t see that because it didn’t happen?

A: It did happen.

Q: I want to suggest to you, you could not have seen that?

A: I don’t agree.”

39. The plaintiff was further cross-examined as to the circumstances of the accident on 19 August 2014. He gave evidence that at the time he first saw the defendant’s vehicle he was just inside the intersection. He stated:

“Q: And it was then that you saw the four-wheel drive, as you explained on the last occasion, swerve as you put it?

A: No, I’d seen him as I sort of crossed the line, swerve. I was probably in the intersection as he came across the front of me. …

Q: When Mr Toomey asked you on the last occasion and you gave a description of a sequence of events leading up to the accident, you described seeing a four-wheel, and you said this, ‘I daresay the car was’, meaning your car, ‘would have sort of been fully just inside the intersection itself so a couple of metres into it’. You’ve said today you’re not too sure whether it was a couple of metres; it may have been some lesser distance, but you were into the intersection – that is to say, crossed into the intersection – at the time that you saw the four-wheel drive vehicle. Correct?

A: I think, yeah. I think so.”

40. The plaintiff was then asked as follows:

“Q: It’s the case, is it not, Mr Singler, that you may well have been going faster than 50kph?

A: Definitely not.

Q: When you made your statement to the police officer that I took you to on the last occasion, which became exhibit 4, you didn’t say anything in that statement to the police officer about the four-wheel drive vehicle, or the other vehicle – the ute if I can call it that – the ute with which you collided?

A: Yes.

Q: Having swerved or changed lanes before the accident did you?

A: I would have told him what happened yes. …

Q: Mr Singler, it’s not until you complete your claim form – that is to say, the personal injury claim form – in August 2003 that we find any version given by you about the other vehicle swerving or changing lanes before the accident. Isn’t that right?

A: I’m not sure what was the earliest date, but I’ve told him what it was and what my memory was, was that he said that was hearsay and the insurance company would work it out.

Q: When you say ‘he’?

A: The police officer.

The claim form became exhibit 9.

41. The plaintiff gave the following evidence:

“Q: What I want to suggest to you Mr Singler, that on the day of the accident you didn’t see the four-wheel drive or the ute with which you collided swerve around the other vehicle at all, did you?

A: Yes, I did.

Q: You didn’t even see it change lanes, did you?

A: I saw it swerve around the car, yes.

Q: What I want to suggest to you is you didn’t see that because you couldn’t have?

A: I disagree.”

The Defendant’s Evidence as to Liability at the Second Trial

42. The defendant gave evidence that the sand on the back tray of his vehicle weighed approximately one tonne. The vehicle had a 2.4 litre engine capacity with four cylinders. The defendant was asked whether the conversation alleged by the plaintiff between him and Mr Lewis took place, namely, “We’ll tell the police that we had the green light, there’s two of us. There’s only one of him.” He denied that.

43. In cross-examination the defendant confirmed his evidence that his speed when he came out of Fawcett Street was 10 kph. He had a clear view of the lights at the intersection of Maitland Road and Silsoe Street which were red. He increased his speed from 10 kph to 30-35 kph and when he was “may be 30-40 metres back from the intersection” he had a red light. He did not change speed but just kept going at 30-35 kph. He continued until the lights changed green, at which time his speed was 30-35 kph.

44. The defendant was cross-examined about his statement to the police (exhibit 4). It read as follows:

“I was driving east in lane 1 at about 25kph. I was approaching the intersection of Silsoe Street and Maitland Road. The traffic light was green. There was a car in front of me starting to move off. I moved into lane 2 and when I was about half thru the intersection a white commodore came from Silsoe Street on my right and collided with my driver’s door.”

45. The defendant agreed that he said to the police officer what was in the statement. He was then asked:

“Q: As I understand what you say now, you say that you were travelling at 30, possibly 35, towards a green light. The light had turned green and you were travelling at 30-35kph?

A: Like I said before, the statement is fairly brief. I think there could be more details put into that statement than what actually is written down in the officer’s book.”

46. The defendant accepted that he told the police officer that the other vehicle was a white commodore, whereas at the first trial he had given evidence that it was a blue or grey commodore. When asked whether it was white, or a blue or grey commodore, he said:

“A: Very unsure about what colour commodore it was now.”

47. The defendant was also challenged about his evidence that he was travelling at 40 kph in the intersection, whereas at the first trial he had given evidence that he was doing 45 kph. When asked “Were you doing 45 or were you doing 40?” his answer was:

“A: They’re pretty close. 40, 45.

Q: You’ve said in another place that you were doing 40-45 kph. You here said you were doing 45. Does that mean you’re unsure of what speed you were doing?

A: No, I was doing 40-45kph.

Q: Doesn’t that suggest that you’re sure which of those two speeds it was?

A: 40/45, those.”

48. He agreed the speeds were not the same. He gave evidence that he saw the other vehicle when it was about two metres away from the driver’s door, with his peripheral vision. He gave this evidence:

“Q: Do you have any explanation as to why you did not see it travelling into and through the intersection before it hit you?

A: Because I was looking ahead to where I was driving.”

49. It was put to the defendant that he had continued down Maitland Road at a relatively slow speed, with which he agreed. He was asked:

“Q: May we take it you did that because you hoped that the light would have been changed to green by the time you got there?

A: No, I was just proceeding down to the set of traffic lights.

Q: Yes; but what I’m putting to you is that it was red in a busy street and green in a minor street and that you hoped that in the 100 metres or so between Fawcett Street and Silsoe Street – in fact it’s 103 metres – that in that 103 metres that the Maitland Road light would change from red to green?

A: No.”

50. The defendant said that he did not know at the time of the accident that the traffic lights operated, generally speaking, on the amount of traffic which was using the intersecting streets.

51. As to the statement he made to the plaintiff after the accident, “Mine wasn’t red”, the defendant was asked:

“Q: Had it been suggested to you that yours was red?

A: By who?

Q: By anyone. Did anyone say to you, ‘Your light was red’?

A: No.

Q: So you went up to the driver of the other vehicle, is that correct?

A: Yes.

Q: And you said to him, ‘Mine was not red’?

A: Yes.

Q: What were you replying to?

A: I don’t know.”

52. It was put to the defendant that at the first trial he had given evidence that as he approached the traffic lights he was slowing down because the lights were there. In answer to a question, what he was slowing down from, stated “I took my foot off the accelerator”. The top speed he had been doing prior to that was 30-35 kph. It was put to the defendant that he was concerned about the load on the back of his truck if he had to slow to a stop:

“Q: And you tell us that it didn’t concern you to stop and start again rather than going straight through the lights?

A: No, it didn’t concern me.”

53. In respect of his police statement, he was asked:

“Q: You see, how is it that you were able to tell the police officer – I’m reading from your signed statement – ‘I was driving east in lane 1 at about 25kph. I was approaching the intersection of Silsoe Street and Maitland Road. The traffic light was green’. There was no stage you were approaching a green traffic light when you were travelling at 25kph, was there?

A: I’m not sure. Sorry.

Q: What do you mean you’re not sure? Why aren’t you sure? This is your statement?

A: Yeah I don’t know what the question – that is my statement, yes.

Q: You told the police officer you were driving in lane 1, about 25. You were approaching an intersection, the traffic light was green and you were doing 25. There’s no time according to your story when you were approaching a green traffic light at a speed of 25kph, that’s true isn’t it?

A: Yeah.

Q: Well why did you tell the police officer that?

A: I can’t remember.”

54. There was no re-examination of the defendant.

Evidence of Grant Johnston

55. Mr Johnston was qualified by the plaintiff as a consultant engineer specialising in reconstructing traffic accidents. He prepared four reports dated 5 July 2012, 10 July 2012 (two reports) and 8 July 2013. No objection was taken to his qualifications, however, a number of objections were taken to parts of his reports. Some of those objections were upheld and the relevant parts of the reports excised. Other sections of the reports to which objection was taken were not relied on by the plaintiff. Mr Johnston was required for cross-examination, notwithstanding that the defendant had not served any engineering expert report.

56. Mr Johnston conducted a view and a site survey of the relevant intersection on 27 June 2012, over nine years after the accident. He was able to identify a point of impact between the vehicles within the intersection of Maitland Road and Silsoe Street. To reach that point of impact he expressed the opinion that the plaintiff’s vehicle travelled “around 14.5 metres” from the holding line at the southern end of the intersection, whilst the defendant’s vehicle travelled “about 12.5 metres” from the holding line to the west of the intersection to the point of impact.

57. Mr Johnston reported that the traffic signals controlling the intersections operated in a dynamic or adaptive manner, responding directly to actual demand of traffic on each approach to the intersection. For that reason there was no objective means of determining which phase was operating at the time of the collision. However, he reported that there were fixed times for the minimum green phase, pedestrian crossing times, the yellow phase and the red phase. At this intersection the yellow phase was recorded as four seconds and the all red phase as two seconds. This meant that at the end of either green phase the lights displayed a yellow traffic light for four seconds which then changed to a red light. The opposite approach (meaning traffic travelling at right angles through the intersection) remained red for an additional two seconds, during which time both approaches showed red phases so that six seconds after the initial display of a yellow phase, the opposite approach showed a green light.

58. Mr Johnston reported that there was insufficient objective evidence by which he was able to perform an analysis of the drivers’ speed at the time of collision. He therefore was forced to rely on the self-reported estimates of speed provided prior to trial by the plaintiff and defendant. He identified the dispute as being one as to which motorist was displayed a green traffic signal as they approached and/or entered the intersection. On the report by the plaintiff that he entered the intersection on a yellow light travelling at 50 kph, and of the defendant that he entered the intersection on a green light travelling at 40 kph, Mr Johnston characterised the case as being one where neither driver has entered what he termed a “stale red light”, but was either a late entry (in the case of the plaintiff), or an early entry (in the case of the defendant), or a combination of both. Mr Johnston went on to provide the following opinion:

“Based on the stated approach speeds, this is unlikely to be the case in this instance as in the two second all red period. Mr Singler’s vehicle would travel just under 28 metres and Mr Ferguson’s vehicle would travel just over 22 metres. This is greater than the likely distance both drivers have travelled into the intersection up to the point of impact. Therefore, assuming the speeds are correct, it is not possible that both drivers are correct about their traffic signal display at the time they entered the junction. One or both drivers must be incorrect about their display.”

59. In a report dated 10 July 2012, Mr Johnston stated as follows:

“Whilst this was only a two-phase junction and therefore could only alternate the phase times, could vary based on demand such that it is impossible to anticipate when the signals would change based on how long they had been red.

I also noted that unlike some junctions there was no obvious line of sight to a signal facing the other approach, such that an approaching driver could see that approach changing to yellow and then red. It is possible for a driver in those circumstances and understanding the approximate yellow and all red times, to obtain a ‘flying start’ into a junction, assuming he gets the phase order correct.”

60. In respect of the report of Mr Johnston dated 8 July 2013, most of that report was either excised following objection, or not relied on. What did remain was paragraph number 2 on page 5 thereof (page 66 of the plaintiff’s liability bundle), in which Mr Johnston described the restrictions on visibility that the defendant had in the direction of the plaintiff’s vehicle as it approached the intersection along Silsoe Street. That obstruction was demonstrated in Figure 1, and was described in the following terms:

“Visibility is restricted by the fence and foliage on the south-western corner of the intersection to about 15 metres from the holding line, assuming a similar approach speed for both vehicles.”

61. In his first report at [8.26], Mr Johnston had said in respect of the perception/response times and that sight line:

“Noting that the required perception response time was about 2.1 to 2.5 seconds and the available sight line first occurred at about 2.2 seconds it is probable that the driver could have just began to respond at about the point of impact, possibly about a tenth of a second before impact to about three tenths of a second after impact.”

62. Mr Johnston was cross-examined and confirmed the distance from Fawcett Street to the intersection of Maitland Road and Silsoe Street was 103 metres. He described the point of impact, referred to in his reports as “the projection of the centre of the two lanes that the vehicles were understood to be in”, namely, lane two in Maitland Road for the defendant and lane two in Silsoe Street for the plaintiff.

63. Mr Johnston confirmed that the phasing of the lights meant that six seconds after the amber light was activated in one direction, the green light in the other direction was activated. Further, the minimum green light period was 10 seconds, although that could increase substantially to cope with peak hour traffic.

64. Mr Johnston described the defendant as driving at 40 kph towards the red light on Maitland Road. He was challenged about that and said that it was his understanding that the defendant was doing between 30 and 35 kph at one point before the lights changed green and that he was travelling at 45 kph when he entered the intersection. He agreed he probably should have said 30-35 kph as the defendant was approaching the lights. It was conceivable that for the time the defendant was travelling on Maitland Road, the red light would have been facing red in his direction for at least 10 seconds. He gave this evidence:

“Q: There would be nothing, from what you have observed in the information that’s been provided to you in this case, that you would suggest that this accident occurred because Mr Ferguson simply didn’t see the red light?

A: That’s correct.

Q: If Mr Ferguson has travelled through a red light, your conclusion would be that he has done it deliberately. That is, in the sense that he knew it was red when he went through it?

A: Or anticipated it and went early before it had got green. But he appears to have been, based on his statement, conscious of the presence of the lights. He sees the stationary vehicle, there’s an active trigger mechanism, he proceeds through.

Q: So whether it was anticipatory or precipitous or whatever, there is nothing to suggest other than he has driven through it – he did drive through it – deliberately. That is to say, knowing that it was a red light?

A: Correct. It’s not a case where, on his evidence I’ve seen, that he either – the more common things – the lights were shielded and he didn’t see them, or he mistook a turning phase green as a through green and went through on that turning phase. There is no turning phases.”

65. Mr Johnston was cross-examined by Senior Counsel for the defendant to establish that, assuming the plaintiff’s vehicle was travelling at 50 kph, it travelled 14 metres per second. Assuming that the defendant was travelling at 60 kph as he proceeded west into the intersection, the plaintiff would have been 10.5 metres south of the impact point at the time that the defendant crossed the holding line on the western side of the intersection (point A shown on exhibit 17). Based on those assumptions, at the time when the all red phase began, the plaintiff would have been at point C on exhibit 17, a distance of 28 metres south of point B on that exhibit. Based on those assumptions, if the defendant entered the intersection with a green light travelling at 60 kph, assuming the plaintiff’s speed of 50 kph, the amber light facing the plaintiff changed to red when the plaintiff was 80 metres south of the intersection.

66. Mr Johnston then agreed to the proposition that if the speed that the defendant was travelling was reduced below 60 kph, the position of the plaintiff on Silsoe Street as he approached and observed an amber light would be further to the south.

67. Mr Johnston was further cross-examined to demonstrate that, given the plaintiff’s speed as a constant 50 kph or 14 metres per second, it would have taken him .65 seconds to travel the last 9 metres to the point of impact of the two vehicles. On the assumptions put to the witness, the defendant then had a distance of 34 metres to travel to the point of impact; assuming the plaintiff had to travel 11.5 metres to the point of impact, the defendant’s vehicle would had to have been travelling at 147 kph to travel the 34 metres. If the plaintiff had not crossed into the intersection at all, he would have been a distance of 14.5 metres from the point of impact, and for the defendant’s vehicle to have traversed 34 metres in one second; the defendant’s vehicle would have to have been travelling at a speed of 122 kph.

68. In the event that the defendant had to travel a distance of 24 metres in the same period of time, that speed would increase to 133 kph. A list of assumptions put to Mr Johnston was tendered and became exhibit 18.

69. Mr Johnston was re-examined about those calculations. Having regard to the known facts about the collision and the damage which occurred to the vehicles, he did not regard those speeds as possible. The point was made that if the defendant had three times the distance to reach the point of impact as the plaintiff, he must have been travelling three times as fast as the plaintiff. Assuming the plaintiff’s speed of 50 kph. that would mean the defendant was travelling at 150 kph. Mr Johnston gave evidence that this was clearly not a 150 kph crash.

70. Mr Johnston was then asked:

“Q: Can I ask you, what was the dynamic position between the vehicles as they approached the intersection? Roughly, how many metres a second were they travelling?

A: The plaintiff’s vehicle was travelling at about 14. The defendant’s speed was similar, slightly less, but it was, on the evidence that I’ve seen, slightly variable, so it wasn’t a constant speed. There was some slight suggestion of variability of initially slowing down and then accelerating as the overtaking manoeuvre occurred into the intersection, but it’s only a few metres per second less on the account anyway.

Q: What do you say they were in round terms?

A: I think it was in the order of just under 10 metres per second, the point he slowed to, and then up to – I think it’s about 12 or 13 metres per second, 13 metres per second once he entered the intersection to the point of impact. So similar but slightly less.

Q: What about the plaintiff’s speed?

A: I think his evidence was a constant 50, which is 13.8 or roughly 14 metres per second.

Q: So there wasn’t a great difference between their speeds in the intersection?

A: No.

Q: Does that mean that the perception by the plaintiff of where he was in relation to the intersection when he first saw the other vehicle was made in a dynamic situation where both vehicles were changing their position by the order of 14 metres a second?

A: Yes.”

Defendant’s Submissions as to Liability

71. The defendant relied on a written outline of his submissions comprising 93 closely typed pages and 337 paragraphs. For a case concerning a collision between two motor vehicles at an intersection, the breadth of those submissions may on first blush seem extraordinary. However, the submissions were carefully prepared, were obviously thorough and allowed concise oral submissions to be made by Senior Counsel when speaking to them. I will attempt to briefly summarise the salient submissions relied on by the defendant as follows.

72. First, the defendant’s submissions outline the relevant principles concerning the onus of proof on the plaintiff to prove his case on the balance of probabilities (s 140(1) of the Evidence Act 1995 (NSW)). The submissions also set out the relevant provisions of the Civil Liability Act 2002 (NSW) (“CLA”), together with relevant authorities both in respect of the onus of proof and liability for negligence, some of which are set out below.

73. The defendant submitted that the determinative question as to negligence is whether the court is satisfied that the defendant disobeyed a red traffic signal. Unless the plaintiff could establish that fact on the balance of probabilities, then it was submitted there must be a verdict for the defendant. It was further submitted that that determination would be sufficient to dispose of the question of liability given, first, the reasonableness of the defendant’s conduct in looking ahead to where he was driving in all the circumstances, and secondly, the evidence concerning sight lines given by Mr Johnston.

74. The limited sight lines were relevant because by the time that the defendant was able to identify the plaintiff’s vehicle moving in a northerly direction along Silsoe Street, because of the amount of time involved in perception and response time, it was too late for the defendant to stop to avoid the collision, or even materially alter his speed and thus the force of impact.

75. It was submitted that to establish that the defendant was negligent, the plaintiff’s evidence had to be accepted, and, consequently, the evidence of the defendant and Mr Lewis as to their vehicle having a green light, had to be rejected.

76. The defendant made submissions, relying on the cross-examination of the expert, Mr Johnston, that if the court accepted the plaintiff’s evidence that he was travelling at 50 kph as he entered the intersection, then the defendant’s vehicle was travelling at truly excessive speeds for it to cover the distance from the point in time when it changed from lane one to lane two in Maitland Road until it reached the point of impact.

77. Further, the defendant relies on evidence given by the defendant and Mr Lewis that the plaintiff had said that he was running late for work and that he was driving his brother’s car. The defendant further submitted that the opinion expressed by Mr Johnston in his first report about the need for the defendant to engage in heavy braking if he wanted to avoid a collision when the van stopped at the red traffic light in lane one, was not made out on the evidence and, in any event, was irrelevant.

78. Senior counsel for the defendant submitted that the defendant’s version of the incident should not be rejected. It had been given consistently on two occasions and had not been successfully impugned in cross-examination on either occasion. The plaintiff’s evidence that the defendant’s vehicle swerved to miss the stationery vehicle and then went through a red light, was described as “implausible at best, fanciful at worst”. The defendant’s version was supported by that of Mr Lewis, who had no interest in the outcome of the proceedings, and no ongoing relationship with the defendant.

79. Another submission was that the court would not accept the plaintiff’s evidence to the effect that he overheard the defendant and Mr Lewis talking at the scene of the collision and the defendant saying words to the following effect:

“When the police come we’ll tell them that we had the green. There’s two of us, there’s only one of them. No witnesses.”

The plaintiff gave evidence that he rejected the suggestion of ambulance officers that he should attend hospital because he wanted to speak to the police when they attended. When he did so, he made no mention of that alleged conversation in his statement to the police (exhibit 4). The defendant submitted that the content of the plaintiff’s police statement, where he attributes to the defendant the words “Was that red?” were a fabrication by the plaintiff, exculpating him for responsibility for the collision.

80. The defendant argued that the issue of the plaintiff’s credit must also be relevant to the court’s consideration of liability. It was submitted that the plaintiff was either simply mistaken about entering the intersection on an amber light, or the probability is that he was lying. Credit played a major role in the defendant’s case theory, it being submitted that the court would not accept the plaintiff as a witness of truth. This was therefore as relevant to the issue of liability as it was to damages. It was contended that the plaintiff had exhibited dishonest behaviour which took a number of forms including exaggeration, minimisation, reluctance to make concessions where they were clearly appropriate, bending the truth and “straight out lies”.

81. In the first trial of this matter in 2008, the trial judge had focussed on three matters of credit, namely, the family law affidavit sworn by the plaintiff in Family Court proceedings, the MRI scan undergone by him and the surveillance film exposed of him in 2005, 2006 and 2008 (exhibits 24, 25 and 27). The defendant’s written outline of submissions set out at [149] – [185] identified numerous issues of credit which the defendant submits should be resolved adversely to the plaintiff. They include:

• The plaintiff’s evidence as to why he stopped his involvement in his retail shop;

• His evidence as to his use of cannabis;

• The inconsistent histories given to the numerous doctors who examined him;

• His dishonesty in attributing his suicide attempt to the effects of the injuries suffered in the accident, and not the tumultuous relationship that he had with his then wife; and

• His omission in providing doctors with a complete medical history, including a previous suicide attempt, and his motorbike accident in November 2011.

82. The defendant also relies on what it refers to as the dishonesty in the plaintiff’s evidence in the Family Court, his history of previous serious criminal activity, the false evidence given by him about the assault on his wife in December 2003, the untruthful presentations he had made to numerous doctors upon examination, the video surveillance evidence referred to above viewed by the court in the first trial (exhibits 24, 25 and 27), together with the more up to date surveillance video which became exhibit 10. In all of those videos the defendant submitted that the plaintiff was depicted as moving freely without any disability to his left arm, and no restriction of movement in his neck.

83. The defendant submits that in both the first trial and during the second trial, the plaintiff portrayed a demeanour in the witness box involving his neck and head being held in a constant position and that he was fundamentally dishonest about that and his ongoing disabilities.

84. It was submitted that the plaintiff had also misled 19 medical specialists who had examined him as to his disabilities arising from the injuries suffered by him.

85. The defendant submitted that the plaintiff’s inexplicable failure to tell the doctors who examined him about his motorbike accident in November 2010, and his omission to raise this in his evidence in chief, raised serious concerns as to the plaintiff’s credit. The defendant relied on the hospital notes relating to the plaintiff suffering an injury to his left shoulder so as to attribute any injury he complains of in his left upper limb to that incident. Rather, the plaintiff minimised the injuries suffered by him and their impact upon him.

86. The defendant also relied on the plaintiff’s failure to disclose that he had an MRI scan on 29 September 2008 at the first trial and his failure to tender the results of any such scan at that trial.

87. Finally, the defendant made submissions in relation to Dr Phillips’ hypothesis that the inconsistencies shown between the appearance of the plaintiff in the video surveillance film and his presentations to the various doctors, could be attributed to a “pantomime of communication”. The defendant definitively rejected that hypothesis and submitted that the most obvious explanation for the clear inconsistency was that the plaintiff was malingering.

88. The defendant argued that all of those issues going to the plaintiff’s credit supported the defendant’s case that the plaintiff could not be believed in his evidence that he was facing a green light as he approached the intersection, and that as he proceeded through the entrance to the intersection, that light turned to amber.

Plaintiff’s Submissions as to Liability

89. The plaintiff relied on a written outline of submissions totalling 38 pages and 111 paragraphs. That document also dealt thoroughly with all issues to be determined in the case.

90. The first issue addressed was the defendant’s contention that, the plaintiff having tendered the transcript of evidence from the first trial, then the evidence of Mr Lewis contained in that transcript, was tendered in the plaintiff’s case. On that basis the defendant submitted that no Jones v Dunkel (1959) 101 CLR 248 submission could be made against the defendant and none was made against the plaintiff. I note that the tender of the transcript was made by consent and find, as it is abundantly clear, that both the defendant’s evidence and that of his witness, Mr Lewis, remained evidence in the defendant’s case.

91. The plaintiff’s case theory was outlined as follows. The defendant travelled in the kerb lane of Maitland Road, increasing speed to more than 40 kph. His utility vehicle was laden with a tonne of sand and other building materials on its tray which would have been inhibited in its ability to stop quickly. It was submitted that the court would infer that the defendant expected the lights to change to green before he reached the intersection, and when they did not do so, he was forced to accelerate in the hope of clearing the intersection safely. He did not look to his right at any point and did not see the plaintiff’s vehicle until just before the impact.

92. This case theory involves the court accepting that the plaintiff was travelling towards the intersection on Silsoe Road with a green light facing him which changed to amber as he entered the intersection.

93. The plaintiff posited two alternative scenarios in his submissions. First, that the defendant went through a green light and collided with the plaintiff’s vehicle. In this scenario the defendant did not at any relevant time look to his right into Silsoe Street and failed to see the plaintiff’s vehicle before the collision. Secondly, both the plaintiff and defendant entered the intersection against a red light which operated at the same time before the lights changed green for the east-west traffic on Maitland Road.

Assessment of Damages

297. It is clear from the above findings that I do not accept the plaintiff’s evidence about his injuries and disabilities and I find that he exaggerated the effect of the injuries on him. Whilst I find that he was depressed following the accident, leading to an attempted suicide on 16 June 2003, the principal catalyst for that attempt was the breakdown of his relationship with his former wife. Consequently, his ongoing pain and depression were multi-factorial, namely, his domestic situation, his long-term abuse of cannabis and the fact that the receipt of social security payments by way of child allowance and carer’s pension, disability pension and compensation payments meant that there was no incentive for him to return to work. This is a complex case in which to assess damages. The plaintiff, once he obtained relief from his pain, sought first, voluntary work at the Hunter Voluntary Centre and subsequently worked at H & R Block, at which he excelled, but in which he was limited physically. I therefore find that the plaintiff’s capacity to earn was partially diminished from the date of the accident until the end of 2010. The amount is not capable of precise calculation as advocated by the plaintiff, however, I allow the sum of $200,000.00 for that period.

298. The plaintiff would be entitled to superannuation on past loss of earning capacity calculated at 11%, an amount of $22,000.

299. Based on the above findings, I am not persuaded that the plaintiff will suffer any future economic loss as a result of injuries he received in the motor vehicle accident in April 2003. I therefore would have declined to make any award for future economic loss.

300. The plaintiff has not passed the threshold for an award of past domestic assistance of requiring such assistance for six hours a week for a period of six months and therefore I would have declined to make any award of damages under that head. The evidence establishes no need for an order for any future domestic assistance.

301. For past treatment expenses I note that the plaintiff claims $166,234.53. Of that amount, $20,700.31 was paid by the workers compensation insurer. The defendant concedes that within the period 2003 and 2004 the plaintiff incurred out of pocket expenses of $15,715.66, however, does not concede the expenses were reasonably incurred or were related to the accident. It is difficult to discern without evidence as to each and every item, however, it is reasonable to allow the sum of $20,700.00 for past out of pocket expenses.

302. There is no evidentiary basis for an award of future treatment expenses for the plaintiff, and I decline to do so.

303. Fox v Wood (1981) 148 CLR 438 payments are claimed in the sum of $23,615 and I allow that sum.

304. I therefore assess damages as follows:

Past economic loss	$ 200,000.00
Past loss of superannuation contributions	$ 22,000.00
Past out of pocket expenses	$ 20,700.00
Fox v Wood	$ 23,615.00
Total	$ 266,315.00

Conclusion

305. For the reasons outlined above, I find that the plaintiff has not established his case in negligence against the defendant, on the balance of probabilities, and therefore must fail. Even accepting that the defendant owed the plaintiff a duty of care, I have found that there was no breach of that duty, and in the event that I am wrong in that finding, any such breach was not causative of the plaintiff’s injuries.

306. I have also found that the plaintiff lacked credit and that his evidence had to be carefully scrutinised and could be accepted without objective corroboration. I do not accept Dr Phillips’ explanation for his presentation before the first trial judge and before numerous doctors as being a “pantomime of communication”. Rather, the plaintiff I have found has been malingering and has exaggerated the claim for damages brought on his behalf.

307. There will therefore be a verdict for the defendant in these proceedings.

Orders

308. I make the following orders:

1. Verdict for the defendant.

2. Plaintiff to pay the defendant’s costs of the proceedings.

3. Plaintiff to pay the defendant’s costs of the first trial.

4. The exhibits are returned forthwith.

5. Any application for a special costs order should be made by way of a Notice of Motion filed and served, together with any affidavit in support, seven days prior to the return date.

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Decision last updated: 01 April 2015