Spirkovski v Ogden
[2007] WADC 222
•21 DECEMBER 2007
SPIRKOVSKI -v- OGDEN [2007] WADC 222
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 222 | |
| Case No: | CIV:763/2005 | 4, 5, 6 DECEMBER 2007 | |
| Coram: | STEVENSON DCJ | 20/12/07 | |
| PERTH | |||
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | BOGOJA SPIRKOVSKI NEVILLE OGDEN |
Catchwords: | Tort Negligence Motor vehicle accident Liability of defendant Collision at intersection Previous conviction of defendant Rule in Jones v Dunkel Qualification of expert witness Admissibility of expert opinion evidence |
Legislation: | Nil |
Case References: | Brandi v Mingot (1976) 12 ALR 551 Clark v Ryan (1960) 103 CLR 486 Harmony Shipping Co SA v Davis & Ors (1979) 3 All ER Jones v Dunkel (1959) 101 CLR 298 Mickelberg v Director of the Perth Mint [1986] WAR 365 Payne v Parker [1976] 1 NSWLR 191 Rapid Metal Developments (Australia) Ltd v Anderson Formrite Pty Ltd [2005] WASC 255 Watson v Moyle; unreported; DCrt of WA, Library No D990010; 20 January 1999 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
NEVILLE OGDEN
Defendant
Catchwords:
Tort - Negligence - Motor vehicle accident - Liability of defendant - Collision at intersection - Previous conviction of defendant - Rule in Jones v Dunkel - Qualification of expert witness - Admissibility of expert opinion evidence
Legislation:
Nil
Result:
Plaintiff's claim dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Stephen Browne
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Brandi v Mingot (1976) 12 ALR 551
Clark v Ryan (1960) 103 CLR 486
Harmony Shipping Co SA v Davis & Ors (1979) 3 All ER
Jones v Dunkel (1959) 101 CLR 298
Mickelberg v Director of the Perth Mint [1986] WAR 365
Payne v Parker [1976] 1 NSWLR 191
Rapid Metal Developments (Australia) Ltd v Anderson Formrite Pty Ltd [2005] WASC 255
Watson v Moyle; unreported; DCt of WA, Library No D990010; 20 January 1999
(Page 3)
1 STEVENSON DCJ:
Introduction
2 At about 4 pm on Friday, 14 November 2003 two motor vehicles being driven by the plaintiff and the defendant collided at the intersection of Hepburn Avenue and Giralt Road, Marangaroo ("the accident"). A third motor vehicle being driven by Ms Elena Messina was damaged by the defendant’s motor vehicle as a result of the accident.
3 The plaintiff and the defendant blame each other for the accident. Each contends that the accident was caused by an entirely different version of events.
4 The plaintiff's case is that he was driving east along Hepburn Avenue and that while performing a right-hand turn into Giralt Road his vehicle was struck by the defendant's vehicle. The plaintiff says the defendant was travelling in a northerly direction on Giralt Road and entered the intersection on the right-hand side of Ms Messina's vehicle without stopping at the stop sign.
5 The defendant's case is he was travelling west along Hepburn Avenue when his motor vehicle was struck by the plaintiff's motor vehicle as the plaintiff turned across in front of him while attempting to make a right-hand turn towards Giralt Road. The defendant contends the accident was caused solely, or was contributed to, by the plaintiff's negligent driving.
6 The factual issue for determination by the Court is whether at the time of the accident the defendant was driving west on Hepburn Avenue (as the defendant contends) or north on Giralt Road (as the plaintiff contends). I am required to decide this issue on the balance of probabilities based on the evidence before me. That is, I must determine which version of events is the most likely explanation for, and thereby the cause of, the accident.
7 This matter was initially listed for three days for the determination of liability and quantum of the plaintiff's claim. However, at the commencement of the trial, I was required to hear and determine an application relating to the defendant's evidence which primarily concerned quantum and upon which I have ruled separately. As a result of that decision, the parties agreed the trial should be limited to liability only and I agreed to utilise the time available on this basis in order not to waste the parties' costs of preparation and the Court's time which had been allocated
(Page 4)
- to hear the matter. Therefore, if the need arises, the amount of the plaintiff's claim will need to be the subject of a separate and further hearing.
The pleadings
8 The plaintiff's statement of claim pleads that on 14 November 2003 the plaintiff was driving east along Hepburn Avenue, Marangaroo and that while performing a right-hand turn into Giralt Road his vehicle was struck by the defendant's vehicle which had entered the intersection from Giralt Road while travelling in a northerly direction. The plaintiff contends that the accident was caused by the negligence of the defendant because the defendant failed to stop at a stop sign, failed to give way to the plaintiff's motor vehicle, failed to keep any or any proper lookout, and failed to brake, steer or control his motor vehicle adequately or at all so as to avoid a collision.
9 In his defence the defendant admits that the plaintiff was driving east on Hepburn Avenue immediately before the accident but says he was driving in a westerly direction on Hepburn Avenue when the plaintiffs vehicle turned in front of him while turning right into Giralt Road. The defendant denies the plaintiff's allegations of negligence and pleads that the plaintiff's negligence caused or contributed to the accident on the basis that the plaintiff failed to keep any proper lookout, failed to give way to the defendant's vehicle when the defendant had right of way, and failed to brake or steer or control his vehicle adequately or at all so as to avoid a collision.
10 It is common ground that the plaintiff was travelling east along Hepburn Avenue and intended to make a right-hand turn into Giralt Road. It is also common ground that at the time of the accident a vehicle being driven by Ms Messina had just commenced to enter the intersection in a northerly direction from Giralt Road with a view to proceeding across Hepburn Avenue into the Kingsway Shopping Centre.
11 It follows that on the pleadings the central issue in dispute between the parties is the direction of travel of the defendant's motor vehicle in the time leading up to and immediately before it collided with the plaintiff's motor vehicle.
The plaintiff's evidence
12 Mr Spirkovski said the accident occurred on 14 November 2003 at about 4.00 - 4.30 pm. At the time he was driving his father's "burgundy
(Page 5)
- red" Holden VR Commodore motor vehicle. He had travelled from his home with his younger sister (now aged 14) to visit a McDonalds store in the Kingsway Shopping Centre. She was sitting in the front passenger seat. He did not purchase anything for himself at McDonalds. At the time of the accident he was 17 years old and was driving his father's vehicle.
13 Having visited McDonalds, Mr Spirkovski turned onto Hepburn Avenue and proceeded in an easterly direction until he reached the intersection of Hepburn Avenue and Giralt Road. He said Hepburn Avenue at that time was two lanes wide, one direction each way. The evidence is that the intersection has been modified since the accident and is now controlled by traffic lights.
14 Mr Spirkovski said he had to complete a right-hand turn from Hepburn Avenue into Giralt Road in order to proceed in a southerly direction towards his home. He estimated he was doing about 30-40 kilometres per hour as he approached the intersection and that he started to slow down for the purpose of completing a right-hand turn into Giralt Road. Having started the turn his evidence-in-chief was:
"I noticed there was a white car on my right–hand side and then I just got a flash and a collision… I saw a flash of a car … from my right–hand side."
15 Mr Spirkovski then said: "I conked out for a while and woke up to my younger sister screaming". He broke the window on his side of the vehicle to get out and went around to the passenger side to assist his sister. He said he did not have any discussion at the scene of the accident with the drivers of the other two motor vehicles involved in the accident but that he spoke to Ms Messina at the hospital.
16 During cross-examination the plaintiff agreed he was looking ahead to see where he was going immediately before the accident. He said:
"As I was turning right – as I was approaching to turn right, a flash of a car just came from the side a split-second before the accident."
17 When pressed by counsel for the defendant, Mr Spirkovski said he was 100 per cent sure it was from the right-hand side.
18 The plaintiff was cross-examined about his various accounts of the accident which he gave after the accident on the basis he had no actual
(Page 6)
- knowledge of what happened and had merely reconstructed in his own mind what he thought had occurred. The content of a statutory declaration Mr Spirkovski made on 12 February 2004 (Exhibit 3) was put to him. In the statutory declaration, the plaintiff said:
"As there was no approaching traffic, it appeared safe for me to continue my right-hand turn into Giralt Road. I started making the turn and from that point on, I do not remember anything. The first thing that I remember is my sister screaming and there was a female helping her." (emphasis added)
"The vehicle that crashed into me was definitely not travelling in a westerly direction in Hepburn Avenue. When I started my right-hand turn from Hepburn Avenue into Giralt Road there were no vehicles approaching, heading west. From what I can remember of the damage to the vehicles, the other vehicle must have come through the stop sign from Giralt Road, there is no other explanation." (emphasis added)
20 I note that earlier in the statutory declaration Mr Spirkovski said "There were a large number of vehicles on my left waiting to come out of the shopping centre and wanting to cross Hepburn Avenue" and that although "there were no vehicles in the opposite lane heading in a westerly direction … the eastbound lane that I was in was busy". This part of the statutory declaration suggests that the intersection was busy with traffic waiting at or approaching the intersection with a view to crossing over or passing through it. I also note in the statutory declaration the plaintiff said he could see Ms Messina's car on his right-hand side "wanting to come out of Giralt Road".
21 The plaintiff was also referred to evidence he gave in a traffic prosecution of the defendant in the Joondalup Court of Petty Sessions and in particular that in the course of that proceeding, he said at T 4:
"The car was still rolling because there was traffic coming in so I was letting it roll and then I was going to attempt to do a right-hand turn, and then I was — got smashed and I don't remember what happened after that."
22 The plaintiff was cross-examined about the notes made by an employee of the Joondalup Health Campus on his admission for treatment
(Page 7)
- immediately following the accident on 14 November 2003. His evidence was that the notes were prepared by somebody else who completed p 1 and p 8 (Exhibit 1) indicating the impact position on his motor vehicle and the record:
"Turning right in filter lane. Hit from left side. Airbag activated. Thrown back into chair. Lost consciousness for [about] 10 seconds?" (emphasis added)
24 The plaintiff was also cross-examined in respect of a crash report form which he completed on 19 November 2003 for the Insurance Commission of Western Australia. In this form (Exhibit 2), Mr Spirkovski wrote in answer to question 20:
"How far were you from the vehicle/pedestrian/push cyclist when you first saw them?---Didn't see them."
25 However, later in the form Mr Spirkovski wrote a narrative account of how the accident happened, which is consistent with the case he puts, but it is noteworthy that he does not say he saw "a flash of a car on his right-hand side".
26 I am not persuaded that the evidence the plaintiff gave this Court that he saw a flash of a car from his right-hand side immediately before the accident is honestly held or believed by him. Even if I accepted his evidence, and was persuaded that this was his own recollection which he had honestly held from the time of the accident it does not on its own rule out the possibility that the accident occurred in the way contended for by the defendant. Given the fraction of a second in which the accident occurred and the respective position of the vehicles at the time of impact such a perception could arguably be held by the plaintiff on either version of the accident. But on its own it does not prove the plaintiff's version of the accident.
27 There are some obvious inconsistencies in the various statements made by the plaintiff after the accident as to what happened, including the statements attributed to him at the hospital immediately after the accident. I am not satisfied that these can be entirely explained by omission.
(Page 8)
28 Mr Spirkovski's own evidence-in-chief appears to be that he had a discussion with Ms Messina at the hospital immediately following the accident. In my opinion, it is likely, on the balance of probabilities, that he has reconstructed in his own mind how he believes the accident occurred based on what Ms Messina has told him. His knowledge of her evidence and her belief as to what happened has no doubt fortified the plaintiff in his own belief of what occured.
29 It is noteworthy that the plaintiff said at p 3 of his statutory declaration dated 12 February 2004:
"From what I remember of the damage to the vehicles, the other vehicle must have come through the stop sign from Giralt Road, there is no other explanation."
30 Mr Spirkovski says this after stating that there were no vehicles approaching him from the east on Hepburn Avenue. I obviously accept that the plaintiff did not see the defendant's vehicle before the collision; otherwise he would not have turned in front of it. As mentioned above Mr Spirkovski says the intersection was busy with traffic entering or wanting to enter the intersection from two of the other three roads in front of him as he approached the intersection and that his own lane was also busy. This may account for his failure to see the defendant's vehicle, as his attention was diverted elsewhere.
31 I note the plaintiff's own evidence that he lost consciousness, albeit for a short period of time, when the accident occurred. His first written statement (Exhibit 2) made five days after the accident states that he did not see the defendant's vehicle. The plaintiff's statutory declaration made 12 February 2004 (Exhibit 3) does not say that he saw the defendant's vehicle or even a "flash" of the vehicle, let alone on his right-hand side.
32 It is also possible that the plaintiff did not see the defendant's vehicle because he was not only monitoring all the other traffic at the intersection, but he might have been focussed on Ms Messina's vehicle. This is especially so if she had in fact started to enter the intersection while waiting for the plaintiff to pass in front of her. The post-accident position of Ms Messina's vehicle shows that it is over the white line protecting the stop sign and that her vehicle was pushed to the left as a result of the defendant's vehicle impacting the right-hand side of her vehicle.
33 On either version of the accident it is difficult, if not impossible, to see how Ms Messina's vehicle could have ended up in this position if it had not already been in part across the white line at the time of the
(Page 9)
- accident. In this regard I note the evidence of Mr Ogden that he approached the intersection cautiously because he had noticed Ms Messina's car; for some reason it had attracted his attention. I also note Ms Messina's own evidence was having stopped at the intersection, she began to enter the intersection with a view to crossing over Hepburn Avenue when she had to stop because she could no longer see to her right – which she attributed to the presence of the defendant's vehicle.
Ms Elena Messina
34 The plaintiff called Ms Elena Messina who gave evidence that on 14 November 2003 she was driving a white Hyundai Sonata motor vehicle in a northerly direction on Giralt Road. Shortly before the accident she was stationary at the intersection with the intention of crossing straight over Hepburn Avenue to enter the Kingsway Shopping Centre. She was familiar with the intersection because she went to the Shopping Centre frequently. She said at the time of the accident (the intersection has since been modified), that in her opinion it was possible to fit "two, possibly three" cars in the lane she was in. She described the position of her vehicle as in "the middle, towards the left". She said she saw "a car coming on my left wanting to make a turn into Giralt Road". She described what happened next in her evidence-in-chief as follows:
"Do you remember what colour that was?---Red, and as I knew I had enough clearance, I looked to my right and I was just about to proceed.
You looked to your right. Where would that have - - - ?---Hepburn. Up towards Hepburn.
To which direction? West or east?---East.
East?---East, yes.
What, if anything, did you see there?---There was nothing coming and it was all clear. I looked left, right and I was just about to proceed when all of a sudden I noticed this brown car coming alongside of me and - - -
You were just about to proceed. What do you mean by that?---Into the Shopping Centre. Right across to the Shopping Centre.
Right?---And all of a sudden this brown car came alongside of me on my right and I couldn't continue any more because he obscured my vision.
(Page 10)
- You say you couldn't continue any more. What do you mean by that?---I couldn't proceed into the Shopping Centre because I couldn't see any more because he came and he - - -
How far forward had you moved from the stop sign?---I had just started to proceed.
Right?---And that's when I noticed this accident happened right in front of me and then the brown car was hit and he came straight towards me.
By straight towards you, what do you mean? What part of his car did you see coming towards you?---His side. The left-hand side of his car.
Which direction was it facing?---The brown car?
Yes?---Northerly.
When did you first see that brown vehicle?---As I was just about to proceed, I had to stop again because he came just all of a sudden alongside of me and I just - I couldn't proceed, because there was no way I was going to go.
When you say you had to stop again, how far do you think had you travelled from the stop sign onwards?---Just very little. Just a little. And I wasn't going to proceed, because I couldn't see, so I stopped straight away and that is when the two cars hit, the red car and the brown car.
Do you remember at what angles they hit, or can't you help us in that respect?---No, I can't help you with that, I'm sorry.
Did you have occasion to say anything to who appeared to you to be the driver of the red vehicle after the accident?---I'm sorry, repeat that again.
Did you have any discussion with the driver of the red vehicle after the accident?---I think - I'm not quite - I think we just said, 'What happened?' He came up to me and said, 'What happened?' I can't recall what I said.
Did you have any discussion with the driver of the brown vehicle?---No. I only went up to him to see how he was and I said, 'Are you all right?' and he didn't respond.
(Page 11)
- Did you call for any assistance?---No. I just rang my husband on the mobile." (T 58 – 60).
35 In cross-examination Ms Messina maintained that she was in the middle of Giralt Road "more towards the left than towards the right …". When pressed by reference to photograph 3 (Exhibit 8) she said she would not agree that her vehicle was in fact more to the right-hand side, even though her evidence was that her vehicle had been pushed to the left by the impact of the defendants vehicle, and she accepted that an ambulance was able to park adjacent to her vehicle facing south on Giralt Road.
36 In a signed written statement made by Ms Messina to the Police on 14 November 2003 (Exhibit 5) immediately after the accident had occurred Ms Messina said:
"I was stationary on the southern corner of the intersection facing north. All of a sudden I looked to my right and observed a brown coloured car coming towards me. This car has then hit me on the driver's side, causing me to be moved to the left."
37 Having agreed with counsel for the defendant that this was when she first saw the defendant's vehicle, Ms Messina went on to explain that she was referring to the moment after the accident had occurred in front of her. When pressed Ms Messina said:
"So that was the first thing you saw, it - - - ?---No.
- - - hitting the car and coming back towards you?---No. The first thing I saw was the car coming alongside of me, on my right-hand side - that I had to stop, because I started to proceed and the reason why I didn't continue straight into the - across the Shopping Centre is because he came alongside of me. I wasn't able to see any more and I stopped immediately, and that's when the two cars hit each other and then the brown car …
The brown one - - - ?--- - - - came towards me after the accident had happened."
38 In re-examination Ms Messina said she trusted the Police to write down what she had told them about how the accident occurred, but she had not read the statement because she did not have her glasses. I note that the statement does not make any reference to the defendant having
(Page 12)
- coming alongside her on Giralt Road and entering the intersection against the stop sign.
39 During cross-examination Ms Messina said that the defendant's vehicle had been going "pretty fast" when it passed her before entering the intersection.
40 Ms Messina was also cross-examined about a statutory declaration she made on 23 January 2004 (Exhibit 6). In the course of this evidence in response to the proposition that the accident could not have happened in the way she suggested because of the location of the damage on the plaintiff's car, she said she did not have "a picture of where they – how they hit. I've got a picture of what happened". She said she did not know which sides of the parties' vehicles were hit. She agreed the accident happened very quickly and described it as "frightening at the time". She accepted the statutory declaration did not mention that she had commenced to enter the intersection immediately before the accident. When pressed she maintained she "saw the Magna coming towards me after the accident, not prior". She said the "accident happened in front of me" and that the defendant's vehicle "was thrown back on to me". She described the position of the collision of the plaintiff and defendant's vehicle as happening in her field of vision, "more to my right"; in front of her; and "just after the stop sign, towards the middle of Hepburn".
41 Ms Messina explained how she tried not to think about the accident because it had caused a lot of stress but denied she had built a picture in her mind about how it had occurred. On p 3 of her statutory declaration she declared that the defendant had said to her at the scene of the accident "I didn't see the stop sign". But in cross-examination when it was put to her that the defendant did not say that her response was: "I can't remember. I would say I can't remember". When it was put to her she had also made up the statement in her statutory declaration that she had heard the defendant say to some people at the hospital that he had not seen the stop sign her response was: "No. That I will admit I did hear". Notwithstanding the statements in her Police statement and statutory declaration to the effect that she was stationary when the accident occurred, Ms Messina said she had started to proceed into the intersection and was moving, albeit "just slightly". This explains why after the accident her vehicle was forward of the stop sign and the white line on the road as she depicted on Exhibit 7 in re-examination.
42 Ms Messina gave her evidence in an open way and I accept she was doing her best to assist the Court. However, the accident clearly (and
(Page 13)
- naturally) has caused her much stress and concern, as she herself admitted. I note at one stage Ms Messina received an infringement notice arising out of the accident but it was not pursued. In this regard, although Ms Messina strongly agreed with counsel for the defendant that she was keen to protest her innocence and that she had no part in causing the accident, later in her evidence she was not prepared to accept that she was anxious to extract herself from any blame for the accident.
43 I have no doubt Ms Messina honestly believes in her mind that the defendant entered the intersection while travelling north on Giralt Road. However, in my opinion, her evidence is tainted by her attempt to reconstruct the events based primarily on her recollection or perception that the defendant's vehicle "flashed" by on her right side. In my view, this is explainable as there is clear evidence that this is precisely what happened after the collision between the plaintiff and defendant's vehicles. The defendant's vehicle rotated and ended up alongside her vehicle on her right, finishing in the post-accident position as shown in the photographs constituting Exhibit 8. There may also be other underlying factors, for example a desire to vindicate herself from any responsibility for the accident. It is clear her impression at the time was that the defendant's vehicle was on her right and this is in fact the position in which it eventually came to rest after the collision.
44 In my view her evidence is unreliable in several respects. She did not in her initial or later statements make it plain that she had started to enter the intersection and she did not allege that the defendant had been the sole cause of the accident because he went through the stop sign on Giralt Road. I do not accept the plaintiff's submission that Ms Messina is "truly an independent witness to the events". However, by not accepting her evidence I am not saying she has given her evidence "falsely" (see par 7 of the plaintiff's outline of submissions). In my opinion she has reconstructed in her own mind what happened based primarily on the defendant's vehicle "coming in on her right". As a result, she believes that he was travelling on Giralt Road. The plaintiff submits Ms Messina's evidence is the "lynchpin" of the plaintiff's case. For the reasons stated it is not persuasive and in any event is not on its own a complete answer to the evidence of the defendant, or an answer to the expert evidence of Mr Simms and Mr Davey.
Mr Joseph Messina
45 The plaintiff called Mr Messina, the husband of Ms Messina. He attended the scene of the accident within about five minutes and spoke to
(Page 14)
- his wife. Although he did not have an exact recollection of what she said at the time, his evidence was that she said: "He came out of nowhere" (a reference to the defendant). He did not say she said the defendant had gone through the stop sign on Giralt Road thereby causing the accident. At the time Mr Messina took six photographs of the accident scene (Exhibit 8). He said there were often three vehicles at the intersection in Giralt Road and that it was a "vague system of positioning yourself….because there was nothing marked". Mr Messina was not cross-examined.
Mr Neville Ogden
46 The defendant gave evidence. At the time of the accident on 14 November 2003 he was self-employed as an insurance broker. He retired in March 2004. He is presently aged 73. Mr Ogden said he was "very familiar' with the intersection because at the time he had been driving to and from work along Hepburn Avenue for a period of about two years. Also, although not for the previous nine months, Mr Ogden said that for about two years he had played golf on Thursday afternoons at the Marangaroo Golf Course, which is off Giralt Road.
47 Mr Ogden said he left his office early on 14 November 2003 (which he described in cross-examination as the only mistake he made that day) and taking his usual route home, stopped at the Dianella Shopping Centre. He said this excursion delayed him for a short time, otherwise it was on his normal route home from the office.
48 In his evidence-in-chief Mr Ogden said as he approached the intersection he saw three or four motor vehicles on the right-hand side and he also observed the "white car" (Ms Messina's vehicle) in Giralt Road. He said he did not know why but he "was nervous about the white car" and thought to himself that he needed to be careful of it. His final recollection immediately prior to the accident was about 20 to 30 metres from the intersection. He next recalled waking up with his head on the steering wheel and looking left. He said he had the impression that there was a mature female in the vehicle alongside his car and that in the other vehicle he saw "two young schoolgirls" in the back seat. In cross-examination he agreed that he knew there was no other evidence of the presence of two young schoolgirls in the plaintiff's vehicle but he maintained in his evidence that this is what he saw.
49 Mr Ogden recalled being asked by two females separately if he was all right and he complained that he thought he was but that his chest was really sore. Apparently they both told him to breathe deeply and slowly
(Page 15)
- and he thought the second female had indicated she was a nurse. He said he had no memory of the impact of his vehicle with the plaintiff's vehicle. He denied as "absolute rubbish" that he made an admission to nursing staff at the hospital that he did not see the stop sign. He categorically said in evidence: "I didn't go through a stop sign".
50 Mr Ogden was cross-examined at length. He estimated he was about 100 metres from the intersection when he first saw the white vehicle and at the time was looking straight ahead. He said "I saw a line of traffic coming towards me, including a truck". He maintained he had no recollection of the actual accident and that he lost consciousness as a result of it. In cross-examination, however, he did say that he remembered the "terrible noise" of the collision and experiencing a lot of pain. Although he fractured his sternum, his evidence was he returned to work within two weeks and has had no difficulty since. He denied that he had been playing golf at the Marangaroo Golf Course on the afternoon of the accident. He said he occasionally hit a bucket of balls at the Wembley Golf Complex but had not played golf for a couple of years due to a knee injury arising out of an accident he had when he was 17 years old. He categorically denied he had played golf on the day of the accident and no evidence to the contrary was adduced. He estimated that he had not played golf at the Marangaroo Golf Club for about nine months prior to the accident.
51 In cross-examination he said he had his left foot on his brake because of his concern about Ms Messina's vehicle, but that he was "not slowing". He estimated his speed approaching the intersection to be about 70 kilometres per hour, which was within the speed limit. He said he did not see any car turn in front of him and that he had no memory of what occurred in the last 30 metres or so before the collision. He described the impact as "violent and loud" and said that he was "thrashed around" but had no idea of where or how. He maintained that just before the accident he was looking forward down the road. It was put to Mr Ogden in cross-examination that he had a memory of the steering wheel "suddenly going mad" based on his evidence in the Joondalup Court of Petty Sessions hearing. On being shown the transcript he maintained he had forgotten that evidence, but equally maintained he was "telling the truth as I honestly believe it". Mr Ogden said he "would have been closer … to the centre line than to the kerb, because I was twitchy of the white car." He denied he had made any admission to the nursing staff that he had not seen the stop sign.
(Page 16)
52 Mr Ogden gave his evidence in a full and frank manner. I note he was present in Court during the plaintiff's evidence and the evidence of Mr and Ms Messina. In my opinion Mr Ogden (as with Ms Messina) honestly believed the evidence he gave and his version of the circumstances of the motor vehicle accident. He was a careful witness and in my assessment listened to the question and sought clarification appropriately when necessary. He did not depart from his evidence in cross-examination about the circumstances in which he says the accident occurred. He may have forgotten something he said in evidence during his Joondalup Court of Petty Sessions trial but he was not shaken in cross-examination as demonstrated by him not abandoning his evidence that he saw two school girls in the plaintiff's motor vehicle when he regained consciousness immediately after the accident, even though he knew there is no evidence to this effect. I do not accept the plaintiff's submission that the whole of the defendant's recollection of the accident should be regarded as "fundamentally flawed" just because this aspect of his evidence is wrong in fact. I assessed Mr Ogden carefully while he gave evidence and I find that he gave his evidence truthfully.
Mr Martin Eric Simms
53 The defendant called Mr Simms to give expert opinion evidence in relation to the circumstances of the accident based on his training and experience. His evidence was based on the post-accident position of the vehicles involved in the primary and secondary collisions and the damage to the vehicles. Mr Simms did not attend the scene of the accident at the time it occurred but relied on the information set out in part 2.2 of his report (Exhibit 12) which included a site visit (after it had been altered), various photographs and the transcript of the evidence in the Joondalup Court of Petty Sessions proceedings.
54 Mr Simms' formal qualifications include a Bachelor of Applied Science (Mechanical Engineering), a Graduate Diploma in Computer Studies (Murdoch University), a Certificate of Structural Drafting, a Certificate of Mechanical Drafting and a Certificate of Trade Studies (Mechanical Fitting). He is a Fellow of the Institution of Engineers Australia, a registered engineer (mechanical) on the National Professional Engineers Register and a foundation member of the Forensic Engineering Association (now the Forensic Engineering Society).
55 For the last 18½ years Mr Simms has conducted his own private practice as an independent consulting engineer. His experience includes investigating industrial and motor vehicle accidents, investigating
(Page 17)
- mechanical failures, the design of equipment including mobile plant and general machinery, preparation of submissions to the Federal Office of Road Safety for certification of motor vehicles in accordance with the Motor Vehicle Standards Act 1989. In addition, he has been involved in the testing of motor vehicles for compliance with the Australian Design Rules for motor vehicle safety and is currently a consulting engineer with the Federal Office of Road Safety. He is listed as competent to submit evidence for certification of motor vehicles to Australian Design Rules. He has produced various research and other reports on transport related topics for regulatory bodies and has reviewed designs of other engineers as an improved design signatory appointed under the Machinery Safety Act.
56 Prior to commencing his private consulting engineer practice Mr Simms had 12 years experience as the engineer in charge of the Police Department's licensing division during which time he was in charge of the vehicle inspection systems throughout WA and was responsible for the technical policy relating to motor vehicle design and usage. He also had 12 years experience as the Western Australian representative on the Australian Motor Vehicle Certification Board and the Australian Vehicle Standards Advisory Committee (a national committee responsible for setting design standards for new vehicles in Australia). He also had four years pre-graduation experience with the Department of Labour and Industry (now WorkSafe WA) involved in machinery inspection, accident investigation and design review of cranes, hoists and related machinery.
57 I have set out Mr Simms' formal qualifications and experience in some detail because at the commencement of his evidence there was an objection by counsel for the plaintiff as to his qualification to express the opinions contained in his reports. Apart from some obvious statements in Mr Simms' reports which on any view could not constitute expert opinion evidence, the matter proceeded on the basis that Mr Pratt would take objection in the course of the substantive evidence of Mr Simms to any aspect that he was concerned about in particular. Counsel for the plaintiff relied upon Clark v Ryan (1960) 103 CLR 486 and the reasoning of Wisbey DCJ in Watson v Moyle (Library No D990010, 20 January 1999). The latter decision concerned opinion evidence from Mr Davey (coincidently the defendant's second expert witness in this case) which his Honour rejected. This was because the report and evidence in that case (which His Honour described as a "reconstruction" based on the materials given to Mr Davey) usurped the role of the trial Judge and the matters in the report were not "such as to require a course of previous habit or study in order to attain knowledge of them". Wisbey DCJ also held that the
(Page 18)
- report was inadmissible because the subject matter of inquiry was not such "that inexperienced persons are unlikely to prove capable of forming a correct judgement without assistance".
58 In response to the plaintiff's submission I would observe the obvious, that in this case the contest is between two, and two only, different versions of how the accident occurred. No other alternative was postulated. Also in this case the expert evidence is of a nature which, by reference to the specialised training, experience and knowledge of both Mr Simms and also Mr Davey, is capable of assisting the Court to consider and weigh the evidence to determine which scenario on the balance of probabilities is more likely to have been the cause of the accident.
59 As to Mr Davey, I interpose that I am of the view, he also is qualified to give expert opinion evidence in the circumstances of this matter based on his specialised knowledge and training, and the opinions contained in his report (Exhibit 15). Obviously I have not had the benefit of seeing the report and nature of the evidence which Mr Davey sought to give in the Watson case. However, based on his oral evidence, to the extent that he was able to recall the matter, that it was based on far less information, with the result that the learned trial Judge regarded it as too speculative to be of any assistance to him in determining the issues in that case.
60 In any event the plaintiff's written submissions do not seek to take the objection to the defendant's experts' evidence based on lack of qualification any further. I am satisfied and find that in my opinion both Mr Simms and Mr Davey have sufficient training, knowledge and expertise to be able to give expert opinion evidence of the nature set out in their reports, some of which is based on physics, principles of motion and momentum exchange. The objection that they do not have any training in photogrammetry (the technique of using photographs to ascertain measurements of what is photographed, especially in surveying and mapping) might be sustainable if their opinions were dependant on precise measurements. But this was not shown to be the case. The evidence was put only on the basis that it was qualitative, thereby enabling an opinion to be expressed about the likelihood of either version of the accident being physically likely. They, just as the Court can see for itself, have done no more than base their opinions on the final post-accident positions of the vehicles and, to a lesser extent the impact damage to the vehicles as depicted in the photographs. The Court is well aware of the dangers of attempting to deduce with precision facts based on looking at
(Page 19)
- photographs, but that is not what the experts have had to do in this case in order to be able to express their opinions.
61 At the request of the defendant's solicitors Mr Simms prepared two reports dated 27 October 2006 and 6 March 2007 (Exhibit 11 and Exhibit 12 respectively). In his report of 27 October 2006 Mr Simms agreed with the opinion expressed in a report prepared by Motor Vehicle Accident Consultants (Mr Davey) dated 30 August 2005 for the defendant. In Exhibit 11 Mr Simms, based on the information supplied to him, expressed the opinion that the accident could not have occurred in the manner described by the plaintiff and Ms Messina because:-
"1. The damage to Ogden's car could not, in my opinion, have been caused by another vehicle approaching from Ogden's left if he (Ogden) had driven straight ahead from Giralt Road as alleged.
2. The damage to Spirkovski's vehicle is not consistent with an impact with a car approaching directly from his right as alleged. The impact damage is clearly frontal and biased to the driver's side of the vehicle.
3. If Ogden had driven into Spirkovski's path as Spirkovski turned across in front of him Ogden's car would have been pushed away from, not towards, Messina's car."
62 Mr Simms prepared a more detailed analysis of the accident and set out the opinions he formed in his second report dated 6 March 2007 (Exhibit 12). The purpose of this report was "to review the available evidence and to provide an opinion as to how the accident occurred". In forming his opinion Mr Simms relied upon the following information:-
"1. A personal inspection of the accident site and measurements made by me of that site.
2. The transcript from the trial held on 4th November 2004 in the Joondalup Magistrate's Court in front of His Worship Magistrate Wheeler.
3. Poor quality photographs taken at the accident scene (apparently by Ms Messina's husband).
4. Good quality photographs of all three vehicles showing accident damage.
(Page 20)
- 5. Various Police reports and statements taken by attending officers obtained under FOI. In some cases I have had to deduce the identity of the persons making statements from the context due to their names having been blanked out. Statutory Declarations from some of the parties."
63 In his report Mr Simms considered various possible scenarios and having done so formed the conclusive opinion that the motor vehicle accident could not have occurred in the circumstances contended for by the plaintiff and Ms Messina based principally on the post-accident position of the vehicles and the damage to the motor vehicles. Mr Simms said in examination-in-chief that in his opinion it was "physically impossible" for the accident to have occurred in the way contended for by the plaintiff. This conclusion was based on a number of factors. For example, Mr Simms said that in order for Mrs Messina's vehicle to have been moved to the left then obviously the force which caused her vehicle to move must have come from the right. In his opinion if Mr Ogden had proceeded through the stop sign on Giralt Road into Hepburn Avenue and collided with the plaintiff's vehicle as the plaintiff was attempting a right-hand turn into Giralt Road, then both the plaintiff and defendant's vehicles would have, by reason of the forces involved, been projected in an easterly or north easterly direction, that is away from Ms Messina's car.
64 Mr Simms was cross-examined at length. In the course of cross-examination Mr Simms maintained that the speed and mass of the vehicles was not important because he was concerned qualitatively to determine the likely direction of the vehicles immediately preceding the collision. Mr Simms explained that the force exerted by one vehicle would be dominant as against the other depending on which vehicle had the greater mass and the greater speed. In this regard Mr Simms said both vehicles were about the same weight (he estimated there was a 160 kilogram difference in mass) but that the critical factor in the circumstances of the accident was the speed because velocity is squared. He agreed based on the damage to the plaintiff and defendant's vehicle that the defendant's vehicle was the dominant vehicle at the time, therefore indicating that it was travelling at a greater speed than the plaintiff's vehicle. This is consistent with the defendant's evidence that he was travelling at about 70 kilometres per hour as he approached the intersection. The evidence of the plaintiff was that he was doing about 30-40 kilometres per hour as he attempted to execute his right-hand turn into Giralt Road.
(Page 21)
65 Mr Simms also relied upon the assumption that the plaintiff's car was spun around 180 degrees to support his contention that the defendant's car was the dominant vehicle in the accident. Mr Simms evidence was that the defendant's version "matches perfectly the post-accident evidence". He went on to say in cross-examination at T 163:
"He [the defendant] would have ended up forward of the initial point of contact; that's perfectly acceptable. He would have ended up towards Messina post initial impact and there's no magic about that because he did. He ended up slammed up against Messina, pushing her to the left. If he struck Spirkovski reasonably well to the right of Messina but coming towards Spirkovski it's entirely consistent because he hits Spirkovski, there's a short moment of crushing of the vehicles when they lock together and then they start to rotate. He rotates around and it may well be they were still stuck to each other when he hit Messina and then Spirkovski broke free and carried on his 180-degree swing and ended up where he is. That's entirely consistent with that photograph."
66 Notwithstanding vigorous cross-examination by Mr Pratt on behalf of the plaintiff, Mr Simms was not shaken from the opinion expressed in his reports and was able to explain logically and clearly on each occasion why any alternative other than the defendant's version of events could not be correct. The analysis was always on the basis of the known damage to the motor vehicles and the known position of the motor vehicles immediately following the collision. As Mr Simms said "I don't need to hypothesise where it happened". As to the various variables which Mr Pratt put to Mr Simms, he said at T 166:
"A multitude of variables?---Yes, but if under all of those variables considering the bounds of either case we end up in a position that's inconsistent where someone said we did, then you can say that the witness is wrong. What I'm saying is we don't need to know how fast the vehicles are going, we don't need to know exactly where they collided with each other. What we need to know is what would have happened to them under all feasible scenarios and if none of those scenarios produces the result that's alleged to have occurred then the allegation is incorrect."
67 In re-examination Mr Simms confirmed he was still of the opinion that the only scenario which fitted the post-accident evidence of the
(Page 22)
- damage to the motor vehicles and their final resting position was the explanation contended for by the defendant.
68 Mr Simms gave his evidence in a professional manner. He was able to explain clearly and precisely his opinion and the reasons for his opinion in response to every contention and issue put to him. His evidence was compelling and unshaken by cross-examination. No rational alternative was accepted by him as being a possible explanation for the circumstances as to what occurred on 14 November 2003, and none other than the parties' contentions was raised as a possible alternative. I do not accept the plaintiff's submission that the defendant's expert evidence is flawed or should be given no weight because "there is a singular lack of any reliable objective physical evidence". The factors referred to by the plaintiff's counsel that are unknown, for example, the precise point of impact on the road, do not detract from Mr Simms' conclusion on the critical issue, namely the direction of travel of the defendant's vehicle immediately prior to the accident.
Mr Robert John Lyne Davey
69 The defendant called Mr Davey as an expert witness. Mr Davey carries on business under the name of "Motor Vehicle Accident Consultants". At the beginning of his evidence there was an objection by plaintiff's counsel to Mr Davey being permitted to express the opinions contained in his report dated 30 August 2005 (Exhibit 15). As a result of the objection Mr Brooksby led further evidence to qualify Mr Davey and both parties were content to allow the matter to proceed on the basis that I should receive the evidence and consider whether there was any merit in the objection during my final deliberations. No specific objection was taken thereafter by Mr Pratt on behalf of the plaintiff to any particular aspect of Mr Davey's evidence.
70 In view of the objection I will set out the expertise and experience of Mr Davey in more detail than is perhaps necessary. Mr Davey produced a Curriculum Vitae (Exhibit 14) which disclosed his practical experience and tertiary qualifications. Mr Davey joined the Surrey Police in 1976 and transferred to the Traffic Police in 1982. In the course of his work in England and since he said he had attended or assisted in about 3,000 serious or fatal accidents. In 1990–1992 he obtained a qualification in motor vehicle accident reconstruction from City and Guilds of London Institute. This included instruction in physics and principles in motion, derivation and proof of formulae, collection of evidence, examination of tyre marks, momentum exchange, projectiles and pedestrian impact. In
(Page 23)
- 1992 he undertook an advanced City and Guilds course which involved further review of accident investigations followed by a tertiary examination, which he passed with credit. In 1994–1999 he undertook and obtained a Bachelor of Science from Edith Cowan University in Computer Science. His evidence was that computer analysis is now an inherent and critical part of accident reconstruction.
71 At the commencement of his cross-examination Mr Davey maintained that accident reconstruction is a recognised science. In addition Mr Davey gave evidence that he had witnessed probably several hundred staged crash tests that had been filmed using high speed video. He also gave evidence that he attended a residential course about two years ago in Brisbane which was solely concerned with crash analysis. He is a member of the Australasian and South Pacific Association of Collision Investigators and lectures to the Western Australia Police Major Crash Department in accident investigation techniques for the degree Diploma in Major Crash. Currently, he is tutoring external students on behalf of De-Monfort University in "forensic accident investigation".
72 As mentioned above the Court was referred to the decision of His Honour Judge Wisbey in Watson v Moyle; unreported; DCt of WA, Library No D990010; 20 January 1999. Mr Davey was asked in examination-in-chief whether he recalled the evidence he gave in Watson v Moyle(supra). Mr Davey said he had a vague recollection of the matter in view of the fact that he dealt with about 200 matters on average each year. He said if he recalled correctly the physical evidence available to him in that matter was "slim" and he had been asked by the instructing solicitors to provide an opinion. He said he gave evidence about 12 times a year in court and had never had his evidence rejected by reason of lack of expertise or content on any subsequent occasion.
73 Mr Davey's report of 30 August 2005 discloses reliance upon his specialised expertise in crash analysis concerning, motor vehicles, to form and express the opinions contained in the report. He has analysed photographs of the damage sustained by the plaintiff's and defendant's vehicles as a result of the accident. More importantly, he has relied upon the post-accident position of the vehicles having regard to the principle of the conservation of linear momentum which is directly applicable to motor vehicle accidents. In this case he relied upon his knowledge of the theory linear momentum to ascertain the motor vehicles behaviour in relation to their movement. Mr Davey explained that he did not have relevant measurements and information to determine an estimate of the
(Page 24)
- speed of the vehicles at the time of their impact but that he was able to use his knowledge and experience in a qualitative sense to determine the likely direction of the motor vehicles.
74 Mr Davey considered both the plaintiff and the defendant's version of events and said that he was not aware of any other alterative scenario which had been postulated by anybody in respect of the matter. Mr Davey gave evidence that every motor vehicle has momentum which is the product of its mass and velocity. He said if the point of impact and post-accident position of the vehicles was known it was possible, using the theory of linear momentum, to "get an idea of the pre-accident direction" of the relevant vehicles.
75 By reference to the photographic evidence of the damage to the plaintiff’s and the defendant's vehicles (appended to his report) Mr Davey expressed the opinion that the collision of the vehicles was "offset" in the sense that the centre of their masses was not directly aligned. In his opinion the result of the de-acceleration would necessarily cause the vehicles to rotate clockwise, which is consistent with the defendant's version of events and also the post-accident position of the vehicles.
76 His evidence was that the vehicles were where he would expect to see them, based on the defendant's version. On the plaintiff's version of events, the vehicles, he said, should have ended up in a north or north-east quadrant from the point of impact. This is graphically illustrated in part 9 of his report which demonstrates by yellow box the general area of the expected post-impact position of the vehicles on either scenario. In cross-examination Mr Davey explained the diagrams were schematic and not to scale and were intended to be representative only of the general principle.
77 In summary, in his opinion the plaintiff's version of events was not possible because the defendant's vehicle would have been pushed away from Ms Messina's white Hyundai rather than towards and into it. In cross-examination Mr Davey said that the angle of Ms Messina's vehicle as indicated in the photographs, which was perhaps as much as 45 degrees off centre (given that it was her intention to proceed directly across the intersection), suggested that the defendant's vehicle had come into it from the right side with some force in order to push the front of the vehicle to the west. In part 5.2 of his report Mr Davey said:
"I cannot envisage a circumstance where Mr Ogden could have emerged from Giralt Road into Hepburn Avenue, struck the
(Page 25)
- Commodore and subsequently bounced back into the side of the Hyundai as alleged by the (sic) police, the independent witness and the driver of the Commodore. When vehicles collide, they do not 'rebound' backwards as alleged by the police in form P72 as they are generally constructed of any elastic materials. This can be observed in crash tests, where vehicles are deliberately driven into a solid object at a known speed and are seen to wrap around the object at impact … this scenario is impossible, given the laws of linear momentum and the damage sustained by the Commodore and Magna. Again, vehicles do not 'rebound' or bounce off each other."
78 In his conclusion in his report Mr Davey says:
"If Mr Ogden had been travelling north of the time of impact and had struck the east bound Commodore, both vehicles would have moved towards the north-east before coming to rest (see figure 2). The Commodore would have suffered damage to the right side of the vehicle and components would have been forced towards the left. There is no evidence, either from the damage sustained or from the post-accident position of the vehicles that this scenario occurred.
However, if Mr Ogden had been travelling west at impact as he alleges, there would have been a propensity for the vehicles to travel south-west after impact (figure 1). In addition, the vehicles would have struck front right to front right (as is apparent from the sustained accident damage).
After perusing all of the available evidence, the only explanation for this accident based on the damage and post-accident position of the vehicles is the one offered by Mr Ogden, i.e. that he was travelling west of Hepburn Avenue at the time of impact."
79 Mr Davey was cross-examined at length about the point of impact of the plaintiff’s and defendant's vehicles and the damage caused to both vehicles by reference to the photographs. The proposition by counsel for the plaintiff that the plaintiff's vehicle was struck head-on, or more to the centre, was not accepted by Mr Davey who maintained that the damage to the vehicle suggested that the point of impact was more to the right-hand front side. This evidence was consistent with the evidence of Mr Simms.
(Page 26)
80 In my opinion nothing emerged from the cross-examination of Mr Davey to create any doubt or require any further explanation or which departed from the opinion expressed by Mr Davey in his report. Mr Davey's opinion was consistent in all respects with the expert evidence of Mr Simms.
81 In my view Mr Davey gave his evidence in an appropriate manner and endeavoured to assist the Court as an expert. On occasion, during cross-examination, he may have anticipated where the questioning was going but in my view he was merely endeavouring to ensure that he understood the question being put to him before answering it. I have no hesitation in accepting the truthfulness of the opinions which he expressed in his report and his viva voce evidence. Further, in regard to the nature of those opinions and the basis upon which they were expressed and explained in evidence I am satisfied that he is sufficiently qualified by training and practical experience to form and express the opinions he did. I am not persuaded that I should reject his evidence on the basis that he is not sufficiently qualified or was not truly giving expert evidence.
Discussion
82 At the request of the plaintiff's counsel parties were permitted to file written closing submissions. Both parties did so.
83 As mentioned, this is an almost entirely factual case and the Court is required to determine whether the accident occurred as a result of the events alleged by the plaintiff, or alternatively the defendant. Both parties and Ms Messina have now given evidence under oath on two occasions. In addition, all three have made various statements and statutory declarations nearer the time of the accident. As can be expected there are some inconsistencies between the witnesses' recollection of events. Some of these can be explained by omission and the circumstances in which the statements or evidence were given. For example, in the Joondalup Court of Petty Sessions proceedings the defendant was not legally represented. If he had been, additional evidence may have been given or sought by way of cross-examination of the other witnesses on critical matters not appreciated by the defendant in person. I am of course required to make my findings based on the evidence before this Court and my assessment of that evidence having regard to the reliability and credibility of the witnesses. The defendant was convicted of failing to stop at the stop sign on Giralt Road in the Joondalup Court of Petty Sessions on 4 November 2004. He pleaded not guilty. The transcript of the trial was tendered as
(Page 27)
- Exhibit 10. On conviction the defendant was fined $150 and ordered to pay costs of $146.95.
84 The plaintiff seeks to rely on the fact of the defendant's conviction as admissible evidence of the fact that the defendant was travelling north on Giralt Road and failed to obey the stop sign at the time of the accident. It is said that the conviction is prima facie evidence of the defendant's commission of the offence, thereby "leaving it to the [defendant] so convicted to establish the contrary if he can" per Burt CJ in Mickelberg v Director of the Perth Mint [1986] WAR 365 at 371. It is noteworthy that the appeal in Mickelberg v Director of the Perth Mint(supra) was argued on the premise that the Master took the view that the convictions of each appellant meant they were estopped from denying that they had obtained the Director's gold in the way alleged in the indictment. In this case counsel for the plaintiff does not suggest that an estoppel arises by reason of the defendant's conviction, thereby preventing him from contesting in these proceedings that, at the time of the accident, he was in fact driving west on Hepburn Road and not north on Giralt Road. The former was the critical finding of fact which resulted in his conviction in the Joondalup Court of Petty Sessions. However, as Kennedy J said in Mickelberg v Director of the Perth Mint (supra), accepting proof of the conviction is admissible evidence in a civil case, but the question then arises as to the weight to be given to the fact of the conviction by the trial Judge. Kennedy J noted at p 382 that although the appellants were:-
"… seeking directly to attack their convictions … the critical consideration appears to me to be that they are doing so in order to defend a claim which has been brought against them, and they are not the initiators of proceedings which have the dominant purpose of retrying their criminal charges. There is, in my opinion, nothing before us to enable this Court to conclude that the defence serves the dominant purpose of retrying the charges against them, notwithstanding that, the defence standing, this will be an incidental consequence. It would, I think, be wrong in the present case to regard the relevant paragraphs of the defence as constituting an abuse of process. To hold otherwise, it seems to me, would amount virtually to giving conclusive effect to a conviction, a proposition which does not appear ever to have been asserted, although it must be acknowledged that while the view that evidence of a conviction was not admissible in later civil proceedings was held, that question could never have arisen. Although the possibility of a conviction operating as an estoppel
(Page 28)
- has on occasions been raised, there appear to be a number of earlier authorities which are distinctly opposed to it."
85 And at p 383:
"On the basis that a conviction is admissible, but not conclusive, evidence, the question arises of the weight to be given to that conviction. This is not without its own difficulties."
86 Relevantly, for present purposes, Kennedy J says:
"The weight to be given to any convictions which may be proved is a matter for the trial Judge. In the normal case, there can be little doubt that considerable weight would be given to a verdict arrived at by a jury on findings made beyond reasonable doubt. Whether this is a normal case remains to be seen." (At p 385).
87 I have had regard to the fact of the defendant's conviction, the transcript of the evidence and the circumstances in which it occurred. It is a matter which I have weighed in considering the totality of the evidence before the Court in this case. On any view, the evidence in this action (which was received over a period of three hearing days), was far more detailed and rigorously tested than it was by the parties in the Joondalup Court of Petty Sessions proceedings.
88 The plaintiff commissioned an expert report from Mr W J Apgar dated 5 April 2007 but maintained legal professional privilege over it and did not disclose its content to the defendant's solicitors (see Exhibit 16). As a result the defendant submits that it is reasonable for the Court to draw an adverse inference against the plaintiff insofar as the evidence of Mr Apgar is relevant to the expert evidence given by Mr Simms and Mr Davey on the basis that it would not have assisted the plaintiff's case. The defendant in its written outline of submissions relies on the rule in Jones v Dunkel (1959) 101 CLR 298 as set out in Cross (3rd ed) par 1.43 and in the loose-leaf edition at par 1215:
"First, the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that parties' case …"
(Page 29)
89 The defendant's submission concedes that it would not have been reasonable for the defendant to call Mr Apgar as a witness (see Glass JA, Payne v Parker [1976] 1 NSWLR 191 at 201-2. Also see Brandi v Mingot (1976) 12 ALR 551 at 560 in relation to a party's own medical advisers and generally Rapid Metal Developments (Australia) Ltd v Anderson Formrite Pty Ltd [2005] WASC 255). The defendant also accepts that Mr Apgar had a confidential duty not to disclose his report to "the other side" (see Harmony Shipping Co SA v Davis & Ors (1979) 3 All ER at 177 referred to in Rapid Metal Developments(supra)).
90 The defendant's submission is premised of course on the assumption that the evidence of Mr Apgar related to or "joined issue" with the opinions expressed by Mr Simms and Mr Davey in their expert reports and oral evidence. This has not been proven. Accordingly, I am not persuaded that I may draw an adverse inference on the basis contended for by the defendant. I do not decide, because in my view it is not necessary, whether the "rule in Jones v Dunkel" extends to cover the defendant's proposition. I agree with the plaintiff's submission that it is arguable that the rule is confined to "matters of fact in issue". Accepting that Mr Apgar, subject to qualification, may have been called by the plaintiff to give expert opinion evidence, obviously such evidence is based on matters of fact which must be proven separately by admissible evidence.
Findings of fact
91 Having considered all the evidence, I make the following findings of fact as to the circumstances which are relevant to the issue I have to determine.
1. At the time of the accident the intersection of Hepburn Avenue and Giralt Road was controlled by a stop sign on Giralt Road. Vehicles travelling on Hepburn Avenue therefore had right of way over vehicles entering the intersection from Giralt Road. Vehicles travelled straight across the intersection from Giralt Road to enter the Kingsway Shopping Centre, as well as turning left and right into Hepburn Avenue. Vehicles also entered the intersection from the Kingsway Shopping Centre from an entrance opposite Giralt Road. Giralt Road was sufficiently wide in the left lane facing north at the intersection to fit three vehicles, although it was not marked as such. Hepburn Avenue was one lane each way. There was a white kerbside lane for cyclists on Hepburn Avenue and a white stop sign line on Giralt Road. Since the accident the
- intersection has been altered and is now controlled by traffic lights.
- 2. On 25 November 2003 at about 4 pm the plaintiff was driving east on Hepburn Avenue in a red burgundy Holden Commodore and intended to and was in the process of making a right-hand turn into Giralt Road when his vehicle collided with the defendant's brown Mitsubishi Magna sedan. The plaintiff's sister was in the front passenger seat and he was on his way home, having taken her to a McDonalds' store in the shopping centre. At the time of the collision the plaintiff's vehicle was travelling at about 30 kph.
3. The defendant was driving west along Hepburn Avenue on his way home from work. He approached the intersection at about 70 kph, which was within the speed limit. On approaching the intersection he observed Ms Messina's white vehicle amongst the other traffic at the intersection and exercised caution by placing his left foot on his brake pedal but without slowing. He was looking to where he was going but did not see the plaintiff's vehicle turn in front of him until it was too late to avoid a collision. The defendant's attention was drawn in particular to Ms Messina's vehicle and this caused him to approach the intersection with caution.
4. The plaintiff also observed Ms Messina's white vehicle in Giralt Road but did not see the defendant's oncoming vehicle until it was too late to avoid the accident. At the time his vehicle collided with the defendant's vehicle he had started to make a right-hand turn into Giralt Road. The accident occurred in a fraction of a second, given the speed of the party's vehicles, and neither party had time to take evasive action to avoid the collision.
5. Ms Messina was driving a white Hyundai Sonata motor vehicle in a northerly direction on Giralt Road. Shortly before the accident she was stationary at the intersection with the intention of crossing straight over Hepburn Avenue to enter the shopping centre. She was located in the middle or maybe slightly to the left of the middle of Giralt Road. Before the plaintiff’s and the defendant's vehicles collided, Ms Messina had started to move off the stop sign and her motor vehicle had entered a small distance onto Hepburn Avenue, crossing over the white stop sign line on the road.
6. Both the plaintiff and the defendant were knocked unconscious for a short time as a result of the collision of their vehicles. Neither
- has any real recollection of the moments immediately before the impact of their vehicles. Neither has any conscious recollection now of seeing the other vehicle immediately before the collision, but both recall seeing Ms Messina's vehicle at the intersection.
- 7. The plaintiff and the defendant's vehicles collided in front of Ms Messina's vehicle on Hepburn Avenue. It is not necessary for the purpose of determining the issues between the parties to determine the precise position of the vehicles on the road at the time of impact.
8. Ms Messina did experience "a flash of a vehicle on her right" as a result of the defendant's vehicle coming in on her right-hand side and impacting her vehicle after it had collided with the plaintiff's vehicle. The force of the impact was sufficient to rotate the front of Ms Messina's vehicle, and perhaps the whole of the vehicle to a lesser extent, to the left. This fact confirms that the defendant's vehicle was projected in a westerly direction after it hit the plaintiff's vehicle.
9. The post-accident position of all three vehicles and the damage to the vehicles is only consistent with the defendant's version of events. That is, immediately before the collision he was driving in a westerly direction on Hepburn Avenue, and not in a northerly direction on Giralt Road as alleged by the plaintiff.
10. I do not accept that the defendant made any admission at the time of the accident to Ms Messina or at the Joondalup Hospital in her presence to the effect that he did not see the stop sign on Giralt Road.
Conclusion
92 For these reasons the plaintiff has not persuaded me on the balance of probabilities that the accident was caused by the negligence of the defendant.
93 In view of the basis upon which the plaintiff's case was pleaded and argued no issue arises as to any contributory negligence on the part of the defendant.
94 I would dismiss the plaintiff's claim and will hear counsel as to the appropriate orders.
0
5
1