Zaya v Damirdjian

[2022] NSWCA 203

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Zaya v Damirdjian [2022] NSWCA 203

Hearing dates:

31 August 2022

Date of orders:

11 October 2022

Decision date:

11 October 2022

Before:

Bell CJ at [1]
Gleeson JA at [2]
Griffiths AJA at [3]

Decision:

(1) The parties should seek to agree orders which give effect to these reasons for judgment, including in relation to costs of both the proceedings below and the appellate proceedings.

(2) If the parties are unable to reach agreement within 28 days hereof, each should file and serve an outline of written submissions, not exceeding 5 pages in length, in support of their respective proposed orders.

(3) Within a further 7 days thereof, each party may file and serve within that time a brief outline of written submissions in response, not exceeding 3 pages in length.

(4) Unless any party demonstrates that a further hearing is required, the Court will determine final orders on the papers and without a further oral hearing.

Catchwords:

NEGLIGENCE – Motor vehicle accident – Identity of vehicle in dispute – Whether primary judge erred in preferring evidence of a particular witness – Whether principles in Fox v Percy apply – Nominal Defendant held liable

NEGLIGENCE – Motor vehicle accident – Contributory negligence – Whether primary judge erred in not accepting evidence suggestive of speeding – No contributory negligence

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703

Bradley v Matloob [2015] NSWCA 239

Damirdjian, A v Nominal Defendant & Zaya; Damirdjian, C v Nominal Defendant & Zaya [2022] NSWDC 52

Darmidjian, C v Nominal Defendant & Zaya [2021] NSWDC 706

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Sdrolias v Allianz Australia Ltd [2022] NSWCA 20

Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308; (2006) 150 LGERA 11

Solomans v Pallier [2015] NSWCA 266; (2015) 72 MVR 365

Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246

Szeto v Situ [2017] NSWCA 136

White v Philips Electronics Australia Ltd t/as Philips Healthcare [2019] NSWCA 115

Texts Cited:

NA

Category:

Principal judgment

Parties:

Sam Zaya (Appellant/Cross-Respondent)
Armin Damirdjian (First Respondent/Cross-Appellant in 2022/00007355)
Christina Damirdjian (First Respondent/Cross-Appellant in 2022/00007356)
Nominal Defendant (Second Respondent/Cross-Appellant)

Representation:

Counsel:
J Catsanos SC, B Jones (Appellant)
P Menzies QC, A J Parker, M McGirr (First Respondents/Cross-Appellants)
J Turnbull SC, J Sleight (Second Respondent/Cross-Appellant)

Solicitors:
Sparke Helmore Lawyers (Appellant)
Gajic Lawyers (First Respondent)
Moray & Agnew (Second Respondent)

File Number(s):

2022/00007355
2022/00007356

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2021] NSWDC 703

[2021] NSWDC 706

[2022] NSWDC 52

Before:

Judge Levy SC DCJ

File Number(s):

2014/00004566
2014/00269323

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 October 2011 Mr Armin Damirdjian was riding his motorcycle down Nile Street, Fairfield Heights when suddenly, and without warning, a parked white van pulled out from the left-hand side of the road in front of him to make a U-turn. Mr Damirdjian braked heavily, causing his motorcycle wheels to lock. He then lost control of the motorcycle. He fell to the road and sustained significant bodily injuries. Mr Damirdjian commenced proceedings in 2014 alleging negligence against the Nominal Defendant, having been unable to identify the motor vehicle involved in the accident. His daughter, Ms Christina Damirdjian, also commenced proceedings against the Nominal Defendant for mental harm arising from the negligence of the driver of the white van. In 2017, Mr Zaya was joined as the second defendant in both proceedings. Mr Zaya lived at No 17A Nile Street and owned a white Toyota Hi Ace 100 Series van at the time of the accident. He and his employees used that van in the course of running a cleaning business. Mr and Ms Darmidjian ran alternative cases against the Nominal Defendant and Mr Zaya.

In December 2021 the primary judge delivered judgment for Mr Damirdjian and Ms Damirdjian against Mr Zaya in the amounts of $375,000 and $467,621.20 respectively, being satisfied on the balance of probabilities that the white van involved in the accident belonged to Mr Zaya. In coming to that conclusion his Honour relied heavily on the evidence of Mrs Douglas, a resident of Nile Street. She gave evidence that the white van involved in the accident was often parked in Nile Street and belonged to the person who lived at No 17A Nile Street (inferentially, Mr Zaya). Her evidence was, however, both internally inconsistent and inconsistent with other evidence. Notably, she gave differing accounts as to where she was when the accident occurred and whether she saw the white van execute a U-turn on the day of the accident. Her evidence that the white van involved in the accident continued to be parked in Nile Street in 2017 was also at odds with Mr Zaya’s unchallenged evidence that he moved away from Nile Street in 2013. The primary judge concluded that this “conflation in time” did not detract from Mrs Douglas’ evidence about the historical manner of use of the white van. Mr Zaya had also given evidence that both his neighbours owned vans and tendered RMS records that demonstrated that one of his neighbours in particular owned a white van at the time of the accident, which was not acted upon by the primary judge.

Mr Zaya appealed from both these judgments on liability. Grounds 1 to 4 and 6 of his appeals were all effectively directed in one way or another to the primary judge’s acceptance of Mrs Douglas’ evidence relating to identification of the van. Ground 5 alleged that the primary judge’s finding that the white van fled the scene immediately after the accident occurred was inconsistent with the evidence of three other eyewitnesses. Ground 8 alleged that the primary judge erred in failing to find that Mr Damirdjian was travelling at a high speed immediately prior to the accident and was therefore contributorily negligent.

The Nominal Defendant filed notices of contention submitting that the primary judge’s finding that it was not liable to Mr Damirdjian could be affirmed on the alternative ground that Mr Damirdjian was the sole cause of the accident. In the event that Mr Zaya’s appeals were successful, it relied upon cross-appeals making the same complaint of contributory negligence as Mr Zaya.

The primary judge had also made costs orders requiring Mr and Ms Damirdjian to pay the Nominal Defendant’s costs, Mr Zaya to pay Mr and Ms Damirdjian’s costs, and Mr Zaya to pay part of Mr and Ms Damirdjian’s costs liability to the Nominal Defendant, on various bases and in various proportions. Ground 7 of Mr Zaya’s appeal challenged his liability to pay Mr and Ms Damirdjian’s costs liability to the Nominal Defendant. Mr and Ms Damirdjian filed cross-appeals effectively seeking more generous costs orders in their favour.

The Court (Griffiths AJA, Bell CJ and Gleeson JA agreeing) held:

Upholding grounds 1 to 4 and 6 of Mr Zaya’s appeals:

The principles relating to appellate restraint identified in cases such as Fox v Percy (2003) 214 CLR 1; [2003] HCA 22 did not apply here: [67]–[68]. The primary judge’s finding that Mr Zaya was liable as the owner of the white van involved in the accident, based principally on his Honour’s acceptance of Mrs Douglas’ evidence, was erroneous because the primary judge failed to give cumulative effect to several evidentiary matters which cast strong doubt on the reliability of her evidence: [65]–[66]. The primary judge also failed to address and determine a submission advanced several times below to the effect that the reliability of Mrs Douglas’ evidence had to be assessed by reference, inter alia, to the RMS records: [69]–[70].

Dismissing ground 5 of Mr Zaya’s appeals:

The primary judge did not explicitly or implicitly find that the white van fled the scene immediately after the accident: [74]–[77].

Dismissing ground 8 of Mr Zaya’s appeals, the Nominal Defendant’s notices of contention and cross-appeals:

There was no error in the primary judge’s conclusion that Mr Damirdjian was not contributorily negligent. The evidence given by the attending police officer at the scene about the distance of skid and gouge marks left on the road by Mr Damirdjian’s motorcycle, from which an expert “reconstruction” of Mr Damirdjian’s speed immediately prior to the accident was attempted, was unsatisfactory and unreliable: [81]–[86]. No appellable error had been established in relation to the primary judge’s acceptance of Mr Damirdjian’s own evidence to the effect that he was travelling at, if not slightly under, 50 kph at the time of the accident: [87]–[89].

Ordering the parties to seek to agree orders:

The primary judge’s orders, including as to costs, needed to be varied so as to reflect this Court’s reasons for judgment. The parties were ordered to seek to agree orders, including in relation to the costs of both the proceedings below and the appellate proceedings: [97]–[98].

JUDGMENT

Introduction

1. Bell CJ: I agree with the reasons for judgment of Griffiths AJA.

2. Gleeson JA: I agree with Griffiths AJA.

3. Griffiths AJA: These appeals about related matters were heard together. They arise from three judgments of the District Court, which are reported as Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703 (Armin Judgment (AJ)); Darmidjian, C v Nominal Defendant & Zaya [2021] NSWDC 706 (Christina Judgment); and a joint judgment on costs in respect of both those proceedings (Damirdjian, A v Nominal Defendant & Zaya; Damirdjian, C v Nominal Defendant & Zaya [2022] NSWDC 52 (Costs Judgment (CJ)). I intend no disrespect in referring to the first and second respondents/cross-appellants, Mr and Ms Damirdjian, by their respective given names, Armin and Christina.

4. The Armin Judgment is the primary judgment. The primary judge dismissed Armin’s case against the Nominal Defendant but upheld his claim for damages in negligence against the second defendant, Mr Zaya. The primary judge found that the vehicle involved in the accident which resulted in Armin’s injuries was a white Toyota Hi Ace 100 Series van with registration number RCZ11A owned by Mr Zaya. Mr Zaya was ordered to pay Armin $375,000 in damages.

5. Armin is the father of Christina. She was successful in her claim against Mr Zaya for damages for mental harm in the amount of $467,621.20. It is common ground that Christina’s success on issues of liability turned on her father’s successful action against Mr Zaya. Her alternative case against the Nominal Defendant was dismissed.

6. Costs were dealt with in the Costs Judgment. On appeal, they are challenged by various parties, the details of which will be addressed below following the determination of the substantive issues on appeal.

Brief summary of relevant background facts

7. On 5 October 2011, Armin was riding his motorcycle westwards along Nile Street, Fairfield Heights towards his home, which was several blocks away. He claimed that suddenly, and without warning, a parked white van pulled out from the left-hand side of the road in front of him to make a U-turn. Armin braked heavily, causing his motorcycle wheels to lock. He then lost control of the motorcycle, which skidded and gouged the road surface. Although there was no collision, Armin fell to the road and sustained significant bodily injuries.

8. The identity of the owner and driver of the white van were initially unknown to Armin. Pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act), Armin initially commenced proceedings in 2014 claiming damages for negligence from the Nominal Defendant. As a result of evidence which emerged during an early stage of the hearing before the District Court in 2017, Mr Zaya was joined as the second defendant. Armin then pursued an alternative case against Mr Zaya, claiming that he was the owner of the van in question and was liable in negligence to Armin.

9. Christina also brought proceedings against the Nominal Defendant and Mr Zaya as alternative defendants. Her claim for damages was for mental harm she suffered due to the negligence of the driver of the white van when Armin was injured on 5 October 2011. As noted above, it was common ground that the determination of liability issues in Christina’s proceeding were determined by the liability outcome of Armin’s proceedings.

The Armin Judgment summarised

10. It is desirable first to summarise the Armin Judgment before outlining the nature of the various appellate proceedings. It is unnecessary to outline the Christina Judgment because the only challenge arising from that judgment relates to issues of liability which, as noted, were determined in the Armin Judgment.

11. The following features of the Armin Judgment should be noted. First, the Armin proceedings had a regrettably long history. They were commenced on 7 January 2014 and were then subject to pre-trial case management listings. The trial hearing initially commenced on 28 August 2017. On the third day of the hearing (30 August 2017) evidence emerged which suggested the possible identity of the white van and its owner. The proceedings were then adjourned. There was a lengthy period of delay before Mr Zaya was joined as the second defendant on 8 May 2020. Armin and Christina filed a further amended statement of claim and amended statement of claim respectively on 13 May 2020. There were then further interlocutory issues which resulted in the trial not resuming until 15 March 2021. By then almost 10 years had passed since Armin’s accident.

12. Secondly, the primary judge identified the following issues for determination:

1. whether, pursuant to s 34 of the MAC Act, Armin had established that he had satisfactorily pursued due inquiry and search to seek to ascertain the identity of the white van (or, alternatively, whether the identity of the owner or driver of the vehicle had been established). This issue was determined in Armin’s favour for reasons given by the primary judge at AJ [136] to [150];

2. the utility of expert accident reconstruction evidence relating to the manner in which the accident occurred (see AJ [151] to [163]);

3. the need to make findings as to the factual circumstances leading up to and immediately following the accident (see AJ [164] to [180]);

4. the duty of care owed by the driver of the white van relative to the risk of harm (see AJ [181]);

5. whether Armin had established negligence in either of his alternative cases against the Nominal Defendant and Mr Zaya (see AJ [182] to [187]);

6. whether Armin was contributorily negligent (see AJ [188] to [191]); and

7. assessing Armin’s claim for damages (see AJ [193] to [306]).

13. Only some of the issues determined by the primary judge are now challenged (for example, there is no challenge to the assessment of damages in respect of either Armin or Christina).

14. Thirdly, it is necessary to descend into a little more detail concerning the primary judge’s assessment of some of the key issues relating to liability, especially whether the van involved in the accident was sufficiently identified so as to absolve the Nominal Defendant of liability. It is convenient to do so with reference to the evidence of, and the primary judge’s findings concerning, the following witnesses.

(a) Armin’s evidence (see AJ [29] to [45])

15. The primary judge gave a lengthy description of Armin’s evidence concerning the accident. In brief, he noted Armin’s evidence that shortly after making a right turn into Nile Street he looked at his speedometer and saw that he was travelling at approximately 50 kph. Armin said that around that time he looked up and saw a lady ahead of him, accompanied by two children, walking on the side of the road towards him near a white van that was parked on the left side of the road. He said he first saw them from about 150 metres away. He said he was being cautious because of the presence of the children and moved his line of travel towards the centre of the roadway. He said that when he was about 30 metres away he observed that the lady and the children were on the grass footpath and his speed had reduced by then to around 40 kph. The primary judge noted at AJ [33] that Armin said that he then “slightly accelerated from what was then a reduced speed of about 40 kph”. Armin said that the white van pulled out in front of him to make a U-turn without any indication or warning. It was then that he “hit” his brakes. He said that the next thing he remembered was when he was in the ambulance.

16. The primary judge found that Armin’s heavy braking caused the wheels of his motorcycle to lock and consequential skidding, and that Armin had fallen to the roadway and been injured.

17. The primary judge noted Armin’s evidence that, about a week after the accident when he was in hospital, “[h]is recollection of the events seems to have … crystallised” (AJ [35]). At this time he recalled coming down Nile Street, looking at his speedometer, seeing the lady with two children and, finally, the van pulling out in front of him.

18. The primary judge also described proceedings in the Local Court where Armin faced a negligent driving charge instigated by Senior Constable Doubleday, who was one of two police officers who attended the accident scene. The primary judge noted that Armin denied in those proceedings that he was speeding at the time of the accident, but his evidence was not accepted in the Local Court.

19. The primary judge then summarised the key points arising from Armin’s cross-examination by senior counsel for the Nominal Defendant at the initial hearing and his cross-examination at the resumed hearing by senior counsel for Mr Zaya.

(b) Mrs Douglas (AJ [46] to [53])

20. The primary judge regarded Mrs Douglas’ evidence as being important to the question of liability, notwithstanding that there were some difficulties with parts of her evidence.

21. At the relevant time Mrs Douglas lived at No 34A Nile Street. In her initial oral evidence in 2017 she said that she was inside her house when the accident occurred and that she heard the sound of Armin’s motorcycle. Based on that sound she considered that the motorcycle was not going fast. She said that after hearing the sound of the crash and some scraping on the road, she went outside and saw some people gathered at the accident scene. She said she saw both Armin’s motorcycle on the ground and him on the grass near a telegraph pole. She said she also saw a white van standing in Stanley Street opposite her house. Mrs Douglas said that the white van did a U-turn at that place every day and that she had previously seen it parked in her street.

22. Later, in her cross-examination, when asked whether she saw the white van when she came out of her house, Mrs Douglas said that it “was like turning, and before that I heard the motorbike screech after I heard it coming down the road”. She was also initially adamant that she saw the van execute a U-turn on the day of the accident (evidence which she later retracted), and that the van had executed a U-turn outside No 19 Nile Street before driving away up Nile Street. She added that she knew the man who lived in No 19 Nile Street (later corrected to No 17A).

23. The primary judge noted that Mrs Douglas was cross-examined on the consistency between her oral evidence and a written statement she had provided to Armin’s solicitors on 15 July 2014. In particular, she had said in that written statement that on 5 October 2011 she had been at Fairfield Heights College and was returning home in the afternoon walking along Nile Street when she noticed people gathering near the laneway at Stanley Street. She saw both a blue motorcycle on the ground and a man sitting in the gutter who appeared to be injured. She said in that statement that she had been told by people gathered at the accident site that a white van had pulled into the laneway and then reversed out into Nile Street without seeing the motorcycle, which caused the motorcyclist to have an accident in order to avoid hitting the van. She added that, at this time, she remembered that when she had started walking into Nile Street she had seen a white van coming out of the street and driving off. She assumed that this was the white van the other people were talking about.

20. The primary judge noted at AJ [52] that Mrs Douglas’ evidence involved an inconsistent account of events. In view of their significance, AJ [52] and [53] should be set out in full:

52   It appears from the body of evidence cited above that Mrs Douglas had given an inconsistent account of the events to the effect she had come upon the scene whilst walking towards her home and saw events as they appeared after the collision: T26.27 – T27.2. She conceded her memory of the events was poor because the events had occurred some time ago: T29.18. This was not surprising given the effluxion of time, including the period of over 3 years that passed between the two tranches of her evidence.

53   Subsequently, her evidence about the white van and its owner was clarified, and she stated that whilst she did not know the person who owned the white van, she knew he lived at 19 Nile Street, on the corner with Stanley Street: T30.17. She later clarified her evidence about the van being at 19 Nile Street, changing it to refer to number 17a, which was the second defendant’s address: T30.41. She said she saw the van there regularly before and after the subject accident: T30.47 – T31.2. I took her statement that she did not know that person to mean she knew who he was and where he lived, but she did not know him in the personal sense.

(c) Mr Ida (AJ [54] to [62])

25. At the time of the accident, Mr Ida lived at No 20 Percy Street, Fairfield Heights, which is one block south of Nile Street. Mr Ida was a motor mechanic and had known Armin for many years. When the accident occurred, Mr Ida was at home having his lunch. He said that as an experienced motorcyclist himself, he heard the sound of a motorcycle decelerating before hearing a crashing and scraping noise. He drove to the scene of the accident and saw a white van half on the road, with its front wheels on the footpath or the nature strip between No 19 and No 21 Nile Street. He gave evidence of assisting Armin in the presence of about 25 people who had gathered at the scene. He said that after assisting Armin he noticed that the white van had disappeared from the area. He also said that the attending police officer did not seem interested in questioning him after he told him that he had not directly witnessed the accident occur.

26. Mr Ida said that, as an experienced motorcyclist himself, if a motorcycle of the kind owned by Armin was travelling at 50 kph, it would need 50m to 60m to stop on a relatively flat road without braking (ie just by backing off).

27. The primary judge noted at AJ [60] that Mr Ida gave evidence, based on his experience, that a much louder sound would be produced if the motorcyclist backed off in fourth gear when travelling at 90 kph as opposed to 50 kph. Mr Ida said that he did not consider Armin’s motorcycle to be travelling in excess of the speed limit (50 kph) as he considered it was making a normal backing off sound. In cross-examination Mr Ida accepted that he did not know which gear Armin’s motorcycle was travelling in at the time of the accident and that he only heard the sound of deceleration. He added that if the motorcycle had been accelerating too hard he would have heard it.

(d) Mr Sawa (AJ [63] to [66])

28. Mr Sawa lived next door to Mrs Douglas, at No 32 Nile Street. A signed statement of his dated 20 July 2014 was tendered in Armin’s case. In brief, Mr Sawa said that he was home upstairs with his son on the day of the accident when they heard a loud crash on the street outside. He said he ran downstairs and out the front and saw a blue motorcycle lying in the street and an injured man sitting in the gutter. He said he saw other people helping the injured man while others picked up various of the man’s things from the street. He added that he saw a large white van parked on the other side of the street facing towards Stanley Street and that the man who had been driving the van was out and near the man on the ground. He also said that after the police arrived he heard them talking to the man in the white van who told the police that the motorcyclist was travelling along the street and had swerved to miss something.

29. The primary judge noted at AJ [65] that the police records did not make any reference to a conversation between the attending police officer and the man in the white van, nor was Mr Sawa cross-examined on this aspect of his written statement.

30. The primary judge noted that Mr Sawa gave oral evidence at the resumed hearing in March 2021, in which he confirmed some aspects of his written statement (which apparently had been prepared by an investigator). Mr Sawa said that he also saw a man taking charge of organising assistance for Armin and that the man, whom he said had come out of the white van, was not known to him. The primary judge noted Mr Sawa’s evidence that his recollection of events had faded over the decade.

(e) Mr Zaya (AJ [67] to [81])

31. Mr Zaya gave his oral evidence in two tranches, the first on 20 April 2018 and the second on 31 March 2021.

32. Between 2007 and 2013 Mr Zaya lived at No 17A Nile Street (in the middle of a group of three villas). He said that, at the time of the accident, he owned two white vans which he and his employees used in his cleaning business. One of those vans was a Toyota Hi Ace 100 Series with registration number RCZ11A. The documentary evidence showed that Mr Zaya had in fact disposed of the other white van before the accident.

33. In his first tranche of evidence (given before he had been joined as a defendant in the proceedings, and therefore unlikely to have been self-serving), Mr Zaya said that a painter lived next door to him on the right (when facing the front door) (ie in No 17B) and that he also had a van which may have been white. Mr Zaya could not, however, accurately remember the colour because of the passage of time. Mr Zaya said that the owner of the villa complex lived on the left-hand side of his villa (ie in No 17), abutting Stanley Street. When asked whether he knew what type of car the owner had, Mr Zaya said that he thought that he had a van. When asked whether he recalled its colour, he said that he thought it was white but was not sure.

34. Mr Zaya also said that when one of his vans was parked in either his driveway or in the street near or opposite his home, one of his employees might use it. Mr Zaya said that his van with registration number RCZ11A was occasionally parked in the driveway to his villa and sometimes on either side of the road in Nile Street. He added that, when his employees borrowed the van, most of the time they did not return it to him because they worked all night in the cleaning business and the van stayed with them.

35. Mr Zaya said that he did not personally witness the accident.

36. In cross-examination, Mr Zaya accepted that sometimes he did U-turns in his van in Nile Street, where required.

37. In the second tranche of his evidence, Mr Zaya flatly denied the proposition put to him in cross-examination that, on the occasion of the particular accident, he did a U-turn in his van in Nile Street.

38. Mr Zaya did not deny that it might have been one of his employees who had driven the van on the relevant day. He was adamant, however, that he was not the driver.

(f) Senior Constable Doubleday (AJ [82] to [103])

39. Senior Constable Doubleday was one of two police officers who attended the accident. He was called as a witness by the Nominal Defendant. He gave oral evidence in two tranches. The first was in the course of the initial hearing and the second was at the resumed hearing on 16 March 2021 (ie after Mr Zaya was joined as second defendant).

40. In his first tranche of evidence, Senior Constable Doubleday gave evidence that he did not have a tape measure with him when he attended the accident scene. Instead he made a visual estimate of the length of the road gouging, relying upon his belief that a football field (both Rugby League and AFL) was 100m in length as a comparator. This “eyeball” estimate was used by him to arrive at a figure of 50m for the gouge marks. Senior Constable Doubleday also said that he had estimated the skid mark as 20m based upon his stepping out that distance.

41. Senior Constable Doubleday confirmed that he did not enquire into the details of the white van at the time, which he said was mentioned to him only by Armin. He said that he formed the view that Armin was at fault and thereafter made no further investigations.

42. Senior Constable Doubleday also gave evidence that Armin’s two versions of the events (first while he was in the ambulance and later at the hospital).

43. In his second tranche of evidence, Senior Constable Doubleday was cross-examined about the evidence he had given in the Local Court proceedings against Armin on the negligent driving charge.

44. Rather than adding unduly to these reasons for judgment by summarising Senior Constable Doubleday’s further evidence at length it is sufficient to note the following findings by the primary judge at AJ [155] regarding the reliability of his evidence. In particular, the primary judge pointed to three elements of Senior Constable Doubleday’s evidence which were of concern and which were also relevant to the utility of the expert liability evidence which relied upon Senior Constable Doubleday’s evidence:

1. his estimate that Armin had been travelling in excess of 100 kph depended on the views of non-existent witnesses;

2. his estimate of the length of the skid and gouge marks on the road was inherently inaccurate, because:

1. his pacing out of the skid marks had to include a margin for error; and

2. his estimate of the length of the gouge marks was visual, which also had an inherent scope for significant error; and

3. he was wrong to tell the Local Court that the speed limit was 60 kph in Nile Street when in fact it was 50 kph, and this appeared to have influenced his approach when he described relevant events.

(g) Expert evidence concerning accident reconstruction (AJ [104] to [134])

45. Expert evidence was provided on behalf of Armin and the Nominal Defendant. The primary judge described it at some length. It is unnecessary to elaborate upon that evidence at this point. The primary judge concluded at AJ [163] that the evidence was of “limited utility” and did not provide a reliable or reasonable means by which to contradict Armin’s factual evidence that he was not travelling faster than 50 kph. This was because the opinions of the experts were based on what the primary judge described at AJ [155] as “the unsatisfactory evidence of Senior Constable Doubleday”.

Some key findings

46. I will now summarise the primary judge’s findings on the following relevant issues:

1. identity of the vehicle;

2. Armin’s speed and manner of approach;

3. cause of Armin’s fall from his motorcycle;

4. road gouging by Armin’s motorcycle; and

5. ownership of the white van.

(a) Identity of the vehicle (AJ [136] to [150])

47. The primary judge noted that s 34(1) of the MAC Act provides a mechanism for making claims for damages for negligence against the Nominal Defendant where, after due inquiry and search, the identity of a vehicle cannot be established. This mechanism depends, however, on a claimant showing that there has been due inquiry and search with a view to establishing the identity of the motor vehicle concerned (s 34(1AA), although the primary judge erroneously identified the relevant section as being s 34(2)).

48. The primary judge found that the following evidence justified the acceptance of the Nominal Defendant’s submission that Mr Zaya’s vehicle had been sufficiently identified as being involved in the accident:

1. Mr Zaya lived in Nile Street where the accident occurred and at the time he owned at least one white van which was used either by him or his employees in his cleaning business;

2. one of Mr Zaya’s white vans was frequently or routinely parked either in his driveway or on either side of Nile Street;

3. although Mrs Douglas gave variable evidence of what she had seen of the accident, she gave credible evidence which the primary judge accepted to the effect that the van, which was often parked in Nile Street, was the van involved in the accident. She described the van as turning at the place where it always turned. She gave evidence that she saw the van there all the time but the primary judge added that her identification of the man living in No 17A Nile Street had to be viewed “with some caution”;

4. the problem with this part of her evidence is that she described the van as still being used (inferentially by Mr Zaya) in 2017 when Mr Zaya gave unchallenged evidence that he had ceased living there in 2013;

5. although Mrs Douglas had conflated the time period in which she considered the van involved in the accident was still being used and being parked in Nile Street, this did not negate her observation of the van and the historical manner of use at the scene as she described;

6. the Roads and Maritime Services (RMS) records demonstrated that Mr Zaya used only one white Toyota Hi Ace 100 Series van (with registration number RCZ11A) at the date of the accident.

49. The primary judge concluded at AJ [148] that, based on what he described as “the foregoing evidence”, he accepted the Nominal Defendant’s submission and was “comfortably satisfied” that the vehicle involved in the accident was the white van owned by Mr Zaya. His Honour added that he found that Mr Zaya was not the driver of the van but that it “was most probably being used by one of his employees”.

50. Accordingly, the primary judge concluded at AJ [150] that, on the balance of probabilities, Mr Zaya was the owner of the white van which Armin claimed was at fault, with the necessary consequence that Armin’s claim against the Nominal Defendant failed.

(b) Armin’s speed and manner of approach (AJ [172] to [174])

51. The primary judge accepted Armin’s evidence that he was travelling about 50 kph, if not slightly less, at the time of the accident. His Honour said that this finding was supported by the contemporaneous account Armin gave to hospital staff and that, given the context was for medical professionals to ascertain what had happened to him when he was seriously injured, his account was unlikely to be “a calculated artificial self-serving reconstruction”.

52. The primary judge added that because Armin was nearing his home when the accident occurred, it was unlikely that he was travelling at the high speeds claimed by the defence. Moreover, none of the “witnesses” suggested that they heard Armin’s motorcycle to be travelling at a high speed. In addition, because of the presence of the woman and her two children, Armin had good reason not to travel at a high speed. For completeness, the primary judge noted that the expert evidence of Mr Blom (called by Armin), although not determinative, tended to support Armin’s evidence. The contrary expert opinion of Mr Hall was rejected by the primary judge because it had “unduly speculative foundations”.

(c) Cause of Armin’s fall from his motorcycle (AJ [175] to [176])

53. The primary judge found that Armin felt compelled to brake heavily because the white van moved from its parked position to make without warning a U-turn in front of him. Armin “found himself in an agony of the moment situation that compelled him to brake harshly” (AJ [176]), which caused the wheel lock, skidding and instability of his motorcycle, from which he fell.

(d) Road gouging by Armin’s motorcycle (AJ [177] to [178])

54. The primary judge found that after Armin fell from his motorcycle following the wheel lock, his motorcycle slid and left gouge marks on the road, which the primary judge said were not the subject of accurate measurements (plainly referring to Senior Constable Doubleday’s evidence). His Honour added that the police officer’s estimates of 20m of skid mark and 50m of gouging were “inherently inaccurate” (AJ [178]) and had significant margins for error and could not recently be relied upon (thereby also undermining Mr Hall’s expert opinion on speed).

(e) Ownership of the white van (AJ [136] to [150] and [179])

55. For the reasons summarised above at [47] to [50], the primary judge found that he was satisfied that Mr Zaya’s white van was involved in the accident.

56. At AJ [180], under the heading “Conclusion”, the primary judge said that he found that Armin’s evidence should be accepted on the first three of the four elements outlined immediately above. As to the fourth element (ownership of the white van) his Honour repeated his findings that it was Mr Zaya’s white van that commenced a U-turn and which caused the accident. While accepting Mr Zaya’s denial that he was personally involved, the primary judge said that there was a “compelling conclusion” that it was one of Mr Zaya’s employees who had access to the white van.

The appeal and related proceedings summarised

57. In the appeal proceedings concerning the Armin Judgment:

1. Mr Zaya relied upon a further amended notice of appeal. In brief, in appealing against the primary judge’s decision concerning liability, he contends that it was erroneous of the primary judge:

1. to conclude that Mr Zaya’s vehicle was responsible for Armin’s accident because that finding “was dependent upon the acceptance of the evidence of [Mrs] Douglas” in circumstances where her evidence lacked credibility, was inconsistent with her previous signed statement, was internally inconsistent, was inconsistent with other evidence and included a concession (accepted by the primary judge) that, given the effluxion of time, Mrs Douglas’ memory of the events was poor (ground 1);

2. to find that Mrs Douglas’ evidence was credible in circumstances where her evidence was internally inconsistent on various matters, including her whereabouts when the accident occurred, whether she saw the van execute a U-turn, the timing of the U-turn and whether she saw the van driving out of Nile Street after the accident (ground 2);

3. to accept Mrs Douglas’ evidence that she saw Mr Zaya’s van turning across Armin’s path in circumstances where she gave contrary evidence that she did not see the vehicle executing a U-turn on the day of the accident (ground 3);

4. to accept Mrs Douglas’ evidence in circumstances where the evidence was inconsistent with Mr Zaya’s evidence, which was accepted by the primary judge, in material respects. The first complaint related to Mrs Douglas’ evidence that the van involved in the accident continued to be parked in Nile Street in 2017, which was contrary to Mr Zaya’s evidence regarding the time when he moved from Nile Street. The second complaint related to Mrs Douglas’ evidence that Mr Zaya performed a U-turn everyday, contrary to his evidence that when he lived in Nile Street the van was not always in his possession and, even when it was, there was no need to perform a U-turn (ground 4);

5. to accept Mrs Douglas’ evidence without considering other inconsistent evidence by other witnesses, namely Mr Sawa, Mr Ida and Mrs Rubie (ground 5);

6. to fail to consider evidence to the contrary in finding that Mr Zaya’s van was responsible for the accident, namely RMS evidence that there was a white van, not owned by Mr Zaya, registered to a person in October 2011 who also resided in Nile Street and Mr Zaya’s own evidence that, when he resided in Nile Street, his neighbour owned a white van (ground 6);

7. alternatively, to order Mr Zaya to pay Armin’s costs liability to the Nominal Defendant (ground 7); and

8. to fail to find that Armin’s injuries were contributed to by his own excessive speed (ground 8).

2. The Nominal Defendant filed a notice of contention which claimed that the primary judge erred in failing to find that Armin’s injuries were caused by his excessive speed. The Nominal Defendant contended that the primary judge’s finding that it was not liable to Armin could be affirmed on the alternative ground that Armin was the sole cause of the accident.

3. The Nominal Defendant also filed a cross-appeal, said to be relevant in the event that Mr Zaya’s appeal was successful, which claimed that the primary judge erred in failing to find that Armin’s injuries were contributed to by his own excessive speed.

2. Armin filed a cross-appeal relating only to costs. First, he claimed that the primary judge erred in failing to find that either Mr Zaya or the Nominal Defendant was liable for Armin’s costs in relation to all issues except identity; failing to find that Mr Zaya was liable for Armin’s costs in relation to identity; and failing to find that Mr Zaya’s conduct justified an order that he pay Armin’s costs, the costs of the Nominal Defendant and that he indemnify Armin for any costs liability to the Nominal Defendant. Secondly, Armin claimed that the primary judge erred in finding that the Nominal Defendant’s offer dated 26 March 2014 was an offer of compromise. Finally, he claimed that the primary judge erred in determining that Mr Zaya’s costs liability arose only from the time proceedings were commenced against him.

58. In the appeal and related proceedings concerning Christina:

1. Mr Zaya relied upon a further amended notice of appeal, which was in identical terms to the amended notice of appeal relating to Armin, as summarised at [57(1)] above.

2. The Nominal Defendant filed a notice of contention which was in identical terms to the notice of contention concerning Armin (summarised at [57(2)] above).

3. The Nominal Defendant also filed a cross-appeal which raised the same claim as in the cross-appeal relating to Armin (summarised at [57(3)] above).

4. Christina filed a cross-appeal, which contained similar claims regarding the costs orders to those raised in Armin’s cross appeal, as summarised at [57(4)] above, save that no claim was made regarding the Nominal Defendant’s offer dated 26 March 2014.

Determination of Mr Zaya’s appeal

59. As noted above, Mr Zaya raises eight grounds of appeal, the seventh of which relates to costs and which I will address separately below. To avoid adding unduly to the length of these reasons for judgment, generally I will not separately summarise the parties’ primary submissions on the appeal and related proceedings but will endeavour to address them in resolving the key issues in dispute. It is also convenient to group some of the grounds of appeal.

Grounds 1, 2, 3, 4 and 6 of Mr Zaya’s appeal

60. These grounds are all directed in one way or another to the primary judge’s acceptance of Mrs Douglas’ evidence relating to identification of the van. Mr Zaya submitted that Mrs Douglas’ evidence (which he described as “pivotal”) should not have been acted upon because it was glaringly improbable or contrary to compelling inferences (citing Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]–[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]).

61. In brief, Mr Zaya contended that the primary judge erred in acting upon selected parts of Mrs Douglas’ evidence, and in not taking into proper account inconsistencies in her own evidence internally as well as with other evidence. Mr Zaya also drew attention to the primary judge’s failure to address Mr Zaya’s evidence and/or the RMS records which indicated that, at the time of the accident, there were other vans owned by or registered to some of Mr Zaya’s neighbours (particularly neighbours who lived next door on either side of Mr Zaya’s villa). In addition, and importantly, Mr Zaya submitted that the primary judge had failed to appreciate the significance of the contemporaneous evidence given by Mrs Douglas in 2017 when she said that the white van involved in the accident was still parked nearby “in the alleyway” (ie Stanley Street) next to the van owner’s house and across the road from Mrs Douglas’ house. In circumstances where Mr Zaya had moved away from Nile Street in 2013, he submitted that Mrs Douglas’ clear mistake strongly suggested that the van she said was involved in the accident must have been a van owned by someone else other than Mr Zaya. Finally, Mr Zaya submitted that, given the generality of Mrs Douglas’ evidence and in light of the RMS records (which he said showed at least one other white van registered to the same villa complex on 5 October 2011), it was incumbent on the primary judge to consider, even if accepting the evidence of Mrs Douglas, that it was not his white van that was involved in the accident.

62. The Nominal Defendant made lengthy written and oral submissions in support of the primary judge’s finding that Mr Zaya’s white van was involved in the accident. Armin filed an outline of written submissions which defended the primary judge’s reliance on Mrs Douglas’ evidence, but he made no oral submissions on the subject.

63. In brief, both the Nominal Defendant and Armin submitted that it was open to the primary judge to accept Mrs Douglas’ evidence that (a) she knew the van because she had seen it many times; (b) was familiar with its movements; and (c) that it regularly parked in the driveway of No 17A Nile Street.

64. Both these parties also emphasised that the identification of the white van depended upon the primary judge’s reliance on Mrs Douglas’ evidence, which necessarily involved an acceptance of her reliability. Accordingly, while agreeing that the principles in Fox v Percy and Lee v Lee applied, they submitted that the primary judge’s findings in the light of Mrs Douglas’ evidence were not “glaringly improbable” nor “contrary to compelling inferences arising from the evidence”. In addition, Armin submitted that the weight to be given to witness testimony is one for the primary judge (citing Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308; (2006) 150 LGERA 11 at [144] per Beazley JA, with whom Ipp and Basten JJA agreed) and that deference had to be shown to the primary judge’s findings in light of their advantage in hearing the oral testimony firsthand (citing Sdrolias v Allianz Australia Ltd [2022] NSWCA 20 at [10]–[12] per McCallum JA, with whom Macfarlan and Meagher JJA agreed).

65. For the following reasons, grounds 1 to 4 and 6 should be upheld. First, assuming for the moment that (as was common ground) the principles in Fox v Percy and Lee v Lee apply to the particular circumstances here, I would conclude that an important aspect of the primary judge’s finding (based upon his acceptance of Mrs Douglas’ evidence), namely that it was Mr Zaya’s white van which was involved in the accident, was “contrary to compelling inferences”. The contrary compelling inference relates to the primary judge’s analysis of the evidence given by Mrs Douglas in August 2017 that the white van involved in the accident was still parked at that time (and not only around the date of the accident in October 2011) near (inferentially) Mr Zaya’s villa. As has been emphasised, that evidence was plainly mistaken because Mr Zaya had moved away from Nile Street in 2013. The primary judge described that mistake as involving a conflation in the time period by Mrs Douglas and that it did not negate her observation of the van and its historical manner of use at the scene as she otherwise described (AJ [146]). With respect, the flaw in that reasoning is that it is based on an assumption that the van which Mrs Douglas gave evidence about in 2017 was Mr Zaya’s van, and that Mrs Douglas had merely conflated time. This was contrary to a more compelling inference, which ought to have been explored by the primary judge, namely that Mrs Douglas was not mistaken because the van which she said was still parked in the area in August 2017 was not Mr Zaya’s van at all, but another person’s van and that this van was involved in the accident in October 2011 and was still being parked in the area in August 2017.

66. Secondly, for reasons which I will now explain, I consider that the better view is that the principles in Fox v Percy and Lee v Lee do not apply to the particular circumstances of this case, and there are other reasons why this Court should intervene. That is because the primary judge’s finding, based principally on his Honour’s acceptance of Mrs Douglas’ evidence, can be demonstrated to be erroneous based on the primary judge’s failure to give cumulative effect to the following evidentiary matters which cast strong doubt on the reliability of her evidence:

• The finding that Mr Zaya’s vehicle was involved in the accident was dependent upon an underlying finding that Mrs Douglas was at her home when the accident occurred. However, this is contrary to the signed statement provided by Mrs Douglas in July 2014 and subsequently adopted by Mrs Douglas as being true. It is also inconsistent with her statement that she did not witness the accident but walked upon the scene whilst walking towards her home along Nile Street.

• Even if Mrs Douglas was at home when the accident occurred, any observations by her of the accident scene were made minutes after the accident had occurred. It was only then that Mrs Douglas observed the presence of the white van.

• Mrs Douglas gave inconsistent evidence as to whether she saw the white van executing a U-turn on the day of the accident.

• Mrs Douglas conceded her memory was poor given the effluxion of time. This concession, made in 2017, should have focused more significance on her written statement made three years earlier in 2014, which was inconsistent with her later account that she observed the white van execute a U-turn across the path of Armin’s motorcycle.

• Significantly, the primary judge did not address the significance of the RMS records, particularly the records which showed that, when the accident occurred, a person living next door to Mr Zaya at No 17B (namely Ms Ashourina Yalda) also owned a white Toyota van. Nor did the primary judge address Mr Zaya’s evidence to the effect that his neighbours on both sides of his villa owned vans (see [33] above). It was made plain in Mr Zaya’s submissions below (both in writing and orally) that these matters needed to be addressed because they were inconsistent with Mrs Douglas’ evidence but they were not addressed (see further [69]–[70] below).

• Finally, as noted above, the primary judge failed to explore a contrary compelling inference to be drawn from Mrs Douglas’ evidence in August 2017 that the white van involved in the accident was still parked at that time in the vicinity and (inferentially) near Mr Zaya’s villa. The nature of that error has been described at [65] above.

67. Having regard to these matters, I do not consider that considerations relating to the disadvantage of an appellate court apply so as to attract appellate constraint of the kind identified in, for example, Fox v Percy. Rather this case is similar to that which Bathurst CJ (with whom Macfarlan and Leeming JJA agreed) had in mind in Szeto v Situ [2017] NSWCA 136 at [25]–[26] when he described the scope and limits of Fox v Percy principle (as approved and applied in White v Philips Electronics Australia Ltd t/as Philips Healthcare [2019] NSWCA 115 at [39] per Bell P, Basten and Gleeson JJA agreeing):

25 As was pointed out in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, within the constraints marked out by the nature of the appellate process, the appellate court is required to conduct a real review of the trial and of the judge’s reasons whilst observing the ‘natural limitation’ that exists in proceeding on the record which include the disadvantage an appellate court has compared to the trial judge in the assessment of a witness’ credibility: Fox v Percy supra at [23]-[25].

26 That disadvantage particularly arises in a case such as the present where the judge based his conclusion, to a significant extent, on the credibility of the principal witnesses. However, if a conclusion based on credit is shown by uncontroversial facts or uncontested testimony to be erroneous, the appellate court is obliged to intervene: Fox v Percy supra at [28]. One instance where this may occur is where contemporaneous and apparently reliable documentary evidence is contrary to the credibility based finding of the trial judge: State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 at [62]-[63], [93].

68. Although Bathurst CJ’s observations were directed to credibility-based findings by a primary judge, I consider that they apply equally to reliability-based findings of the type made by the primary judge here (see Superannuation & Corporate Services Pty Ltd v Turner [2020] NSWCA 246 at [64]–[65] per Basten, Leeming and Gleeson JJA and Solomans v Pallier [2015] NSWCA 266; (2015) 72 MVR 365 at [41] per Meagher JA (Macfarlan JA and Simpson AJA agreeing)).

69. With specific reference to ground 6 (but also relevant to grounds 1 to 4), it is notable that the primary judge failed to address and determine a submission which was put to his Honour several times below in both Mr Zaya’s written submissions and oral address to the effect that the reliability of Mrs Douglas’ evidence had to be assessed by reference, inter alia, to the RMS records. Mr Zaya drew attention to the fact that the RMS records revealed that Ms Ashourina Yalda was the registered owner of a white Toyota Hi Ace panel van (registration number AA09QU) from 23 March 2011 and that the registration period expired on 5 December 2011. The records also revealed that Ms Yalda’s nominated address from 17 May 2011 to 11 June 2012 was No 17B Nile Street (ie next door to Mr Zaya’s villa).

70. Mr Zaya submitted that the RMS documents and his own evidence (see [33] above) indicated that there were multiple white vans in the area before, at, and after, the accident. He added in his written submissions below that it was no more than mere conjecture that, “out of those possible alternatives”, it was his van with registration number RCZ11A which was involved in the accident. Furthermore, in oral address, it was squarely put to the primary judge that the reliability of Mrs Douglas’ evidence had to be assessed in light of the evidence from both Mr Zaya and the RMS records that, as at the day of the accident, an occupant of No 17B Nile Street also owned a van. The primary judge’s failure to address and determine these submissions, which related to a central controversy, were plainly relevant and were supported by some evidence, gives rise to appellable error (see Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] per Allsop P and at [116] per Campbell JA; New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [46]–[47] per Leeming JA, Barrett JA and Tobias AJA agreeing; and Bradley v Matloob [2015] NSWCA 239 at [75] per Beech-Jones J). The outcome of the proceeding potentially turned upon the determination of Mr Zaya’s submissions concerning identification of the vehicle.

71. These errors by the primary judge not only affect the application of the principles of appellate restraint in cases such as Fox v Percy, they also distinguish the current proceeding from cases such as Shellharbour City Council and Sdrolias.

72. For all these reasons, I would uphold grounds 1 to 4 and 6 of the further amended notices of appeal.

73. The primary judge should not have found that the identity of the driver or owner of the vehicle involved in the accident had been established for the purposes of s 34 of the MAC Act (there was no contest that there had been due inquiry and search). Subject to the Nominal Defendant’s claim that Armin was the sole cause of the accident and the challenge by the Nominal Defendant and Mr Zaya to the primary judge’s finding that there was no contributory negligence, the judgment of the Court below in both the Armin and Christina proceedings should be set aside and judgment be entered for Mr Zaya. Subject to those matters, there should also be judgment for Armin and Christina against the Nominal Defendant.

Ground 5 of Mr Zaya’s appeal

74. Mr Zaya contended that it is implicit in the primary judge’s findings that Mr Zaya’s vehicle fled the scene immediately after the accident occurred. Mr Zaya complained that this was inconsistent with the evidence of three other witnesses (Mr Sawa, Mr Ida and Mrs Rubie) who gave evidence that a white van remained at the scene for some time. Mr Zaya submitted that it “would seem too coincidental that white vans, other than the offending vehicle, were at the scene at the time of the accident, or immediately after it occurred”, contending that the primary judge improperly failed to consider the evidence of these other witnesses.

75. Those claims should not be accepted for the following reasons. First, I do not accept the premise of this ground, namely that the primary judge impliedly found that Mr Zaya’s vehicle fled the scene immediately after the accident. There is no explicit finding to that effect, nor does it reasonably arise by inference. The materiality of the alleged error is also problematic. Whether or not the driver of the white van may have remained at the scene and provided assistance to Armin, the evidence generally indicated that the white van had left the scene without giving any information to the attending police officers.

76. Secondly, something should also be said regarding Mr Zaya’s description of Mrs Rubie as a “witness”. Mrs Rubie did not provide a written statement, nor was she called as a witness at any stage of the proceeding. There is a reference to Mrs Rubie in an investigator’s report dated 26 March 2012 which was obtained by Armin’s solicitors and tendered in evidence by him. The investigator recorded that in 2012 he had spoken to Mrs Rubie, who lived at No 19 Nile Street. She is recorded as saying that on the relevant date she saw “a white van with workout equipment stickers on the side of the vehicle”, which was parked in her driveway. She said that she also saw a man lying on the ground near a blue motorcycle. Significantly, the investigator also recorded that Mrs Rubie was unable to leave the front door of her house and that she was frail and aged 85 years old. She declined to supply a statement in relation to the matter. It is also evident that Mrs Rubie had passed away before the trial. Plainly, unlike Mr Ida and Mr Sawa, Mrs Rubie was not called as a witness in the proceeding.

77. For these reasons, I would reject ground 5.

Ground 7 of Mr Zaya’s appeal

78. For convenience, I will defer addressing this ground, which relates to costs (see [91] ff below).

Ground 8 of Mr Zaya’s appeal (and the Nominal Defendant’s notices of contention and ground 1 of the Nominal Defendant’s cross-appeal)

79. Both Mr Zaya and the Nominal Defendant contended that the primary judge erred in failing to find that Armin’s injuries were contributed to by his own excessive speed. They contended that, contrary to the primary judge’s finding at AJ [190], had Armin been driving at the speed limit and exercising reasonable care and skill for his own safety, based on Mr Hall’s expert evidence, he could have stopped and avoided the accident. They claimed that the primary judge erred in rejecting Senior Constable Doubleday’s evidence as to his measurements of the skid and gouge marks on the road. They also claimed that the primary judge erred in finding that Armin was not driving at an excessive speed and that Armin’s evidence on this matter should not have been preferred to that of Senior Constable Doubleday and Mr Hall. Accordingly, both Mr Zaya and the Nominal Defendant contended that there should be a finding of contributory negligence in an amount of at least 50%. Alternatively, the Nominal Defendant claimed in its notices of contention that Armin was the sole cause of the accident.

80. The primary judge rejected the claims of contributory negligence. His Honour’s reasons for doing so in respect of the claim of excessive speed are set out at AJ [191]:

Particulars of negligence numbered (6) and (7) above in essence raise allegations of excessive speed. The plaintiff’s evidence is to the contrary. The evidence of Senior Constable Doubleday, and the evidence of Mr Hall and Mr Blom, does not serve as a reliable basis upon which to contradict or reject the plaintiff’s evidence that he was riding his motorcycle at about 50kph at the applicable speed limit. Until the white van commenced making a U-turn without indication, the plaintiff was without notice of particular hazards requiring a lesser speed. His evidence in that regard is on its face credible, and not inherently improbable, and it should be accepted.

81. For the following reasons, I do not accept that any appellable error has been established in respect of the primary judge’s conclusion that Armin was not contributorily negligent. First, it was well open to the primary judge to find Senior Constable Doubleday’s evidence concerning Armin’s speed and distances to be unsatisfactory. His Honour gave three reasons at AJ [155] (which are summarised at [44] above) in support of that finding. Those reasons are compelling and reveal no appellable error.

82. There is an additional reason why Senior Constable Doubleday’s evidence was unsatisfactory. It relates to the fact that, as noted above, Senior Constable Doubleday explained that his “eyeball” estimate of the length of the road gouge made by Armin’s motorcycle was arrived at based upon the officer’s belief that a football field, for both Rugby League and AFL, was 100m in length. He used this concept as a “comparator” to arrive at an estimated figure of 50m for the gouge marks. A fundamental difficulty with this approach is that, contrary to Senior Constable Doubleday’s belief, judicial notice may be taken of the fact that AFL grounds vary in length but are a minimum of 150m (ie 50% larger than a Rugby League field). Accordingly, if Senior Constable Doubleday had in mind the length of an AFL field (at least 150m) when he arrived at an estimate of 50m for the gouge mark, this would produce a significantly higher estimate than if he had had in mind a 100m Rugby League field.

83. Secondly, in circumstances where it is uncontested that Mr Hall’s expert evidence assumed the correctness of Senior Constable Doubleday’s evidence regarding his estimated distances of the skid and gouge marks, it is unsurprising that the primary judge found that this necessarily affected Mr Hall’s opinions.

84. This flow on effect was not avoided by the 20% margin used by Mr Hall concerning the accuracy of Senior Constable Doubleday’s estimates of the skid and gouge marks. The primary judge described Mr Hall’s approach at AJ [123]:

Significantly, on the critical question of distance estimation, in arguing for his preferred interpretation, Mr Hall placed great emphasis on what he considered to be the likely accuracy of police estimates of skid and scrape marks, identifying a factor of +/-20 per cent variation (Exhibit “1”, p 24), and his view that it would be “highly unlikely” that the police officer would confuse a scrape distance of 11 – 16m with one of 50m, using that view to discount the plaintiff’s evidence that he was travelling at 50kph at the time of the accident: Exhibit “1”, p 25.

85. The primary judge concluded at AJ [157] that Mr Hall’s attempt to address the deficiencies in Senior Constable Doubleday’s evidence by allowing a margin of 20% was “arbitrary and speculatively unsafe” and lacked the necessary rigour expected of expert evidence. It was open to the primary judge to describe Mr Hall’s evidence in that way and to conclude at AJ [124] that Mr Hall’s approach had the effect of “introducing an element of untenable speculation into the analysis” and that there “can be no default assumption of accuracy of estimates given by police officers, without more supporting detail”, which detail was lacking in this case. The inadequacy of the 20% margin for error used by Mr Hall is also demonstrated by the fact that it would not adequately compensate for the grave distortion in Senior Constable Doubleday’s estimate of the length of the gouge marks if he employed in his “eyeball” estimate the actual length of an AFL field (see [82] above). No appellable error has been demonstrated in the primary judge’s rejection of Mr Hall’s expert evidence.

86. Nor has any appellable error been demonstrated in the primary judge’s conclusion at AJ [157] that Mr Hall’s approach involved “insufficiently supported guesswork, which does not adequately serve to redeem the flawed nature of the exercise, given its importance to determining the rights and liabilities of the parties”.

87. Thirdly, no appellable error has been established in relation to the primary judge’s acceptance of Armin’s own evidence as to the speed at which he was travelling (ie about 50 kph, if not slightly less). His Honour’s reasons for coming to that conclusion, as set out at AJ [173] and [174], are persuasive. They are also supported by the hospital notes dated 5 October 2011, which record Armin telling the medical staff upon his admission to hospital that he estimated his speed was 40–50 kph. As the primary judge correctly noted at AJ [173], it is unlikely that this contemporaneous hospital record was the consequence of “a calculated artificial self-serving reconstruction given by [Armin] at that time”.

88. Fourthly, no appellable error has been demonstrated in respect of the primary judge’s preference for Armin’s evidence regarding speed over that of Senior Constable Doubleday and/or Mr Hall. This particular complaint adds nothing to the other three matters raised by the Nominal Defendant and Mr Zaya in support of their claims regarding contributory negligence, which matters are dealt with immediately above.

89. Finally, it necessarily follows that the Nominal Defendant’s contention raised in its notices of contention that Armin was the sole cause of the accident must be rejected. No appellable error has been demonstrated in respect of the primary judge’s acceptance of Armin’s evidence regarding the circumstances surrounding the accident. This is well-captured in the primary judge’s description that Armin’s accident resulted from him finding himself “in an agony of the moment situation” (AJ [176]).

90. For these reasons, I would reject ground 8 of Mr Zaya’s further amended notices of appeal, ground 1 of the Nominal Defendant’s cross-appeals and the Nominal Defendant’s notices of contention.

Costs orders below

91. In the Costs Judgment (as evidently varied by the primary judge under the slip rule on 21 April 2022), the primary judge made the following orders:

In Armin’s proceeding:

1. There was no costs order up to 6 September 2017 (reflecting the doubt which existed up to then of the owner or driver of the white van), but Armin was ordered to pay the Nominal Defendant’s costs on an indemnity basis thereafter;

2. Mr Zaya was ordered to pay Armin’s costs incurred after 13 May 2020 on the ordinary basis; and

3. Mr Zaya was ordered to pay Armin’s costs liability to the Nominal Defendant from 3 September 2020 (the day after Mr Zaya filed his defence to Armin’s claims) on the ordinary basis.

In Christina’s proceeding:

4. Christina was ordered to pay the Nominal Defendant’s costs on the ordinary basis;

5. Mr Zaya was ordered to pay Christina’s costs incurred after 13 May 2020 up until 3 November 2020 on the ordinary basis and thereafter on an indemnity basis (reflecting Mr Zaya’s failure to accept Christina’s offer of compromise); and

6. Mr Zaya was ordered to pay Christina’s costs liability to the Nominal Defendant up until 3 November 2020 on the ordinary basis and from 4 November 2020 on an indemnity basis.

92. For completeness, it appears that the primary judge mistakenly believed that Mr Zaya was joined as the second defendant to both proceedings on 13 May 2020 when in fact he was joined on 8 May 2020.

93. On 26 March 2014, the Nominal Defendant served Armin with an offer of compromise that complied with the requirements set out in the Uniform Civil Procedure Rules 2005 (NSW) r 20.26 (UCPR). That offer invited Armin to accept a verdict and judgment in favour of the Nominal Defendant without any order as to costs. Armin did not accept this offer. As matters turned out, Armin achieved judgment on no more favourable terms vis à vis the Nominal Defendant than those proposed in the Nominal Defendant’s offer.

94. On 3 November 2020, Christina served offers of compromise, which also complied with UCPR r 20.26, on both the Nominal Defendant and Mr Zaya. Christina proposed to settle the proceedings in exchange for a sum of $325,000. Neither of the offerees accepted the offer. As matters turned out, Christina obtained judgment in her favour against Mr Zaya on no less favourable terms than those she proposed in her offer to him. The same cannot be said of her proceeding against the Nominal Defendant, which was dismissed.

The parties’ challenges to the costs orders below

95. In brief, the costs orders below are challenged as follows:

1. By ground 7 of Mr Zaya’s further amended notices of appeal he challenged the orders that he pay Armin and Christina’s costs liability to the Nominal Defendant.

2. By his cross-appeal, Armin challenges the costs orders below as follows:

1.    The trial judge erred in:

a. Failing to find that the appellant or second respondent were liable for the first respondent’s costs in relation to all issues except “identity”.

b. Failing to find that the appellant was liable for the first respondent’s costs in relation to identity.

c. Failing to find that the appellant’s conduct justified an order that:

i. He pay the first respondent’s costs; and

ii. He pay the costs of the second respondent; or

iii. He indemnify the first respondent for any costs liability to the second respondent.

2.   The trial judge erred in finding that the second respondent’s offer dated 26 March 2014 was an offer of compromise.

3.    The trial judge erred in determining that the appellant’s cost liability arose only from the time proceedings were commenced against him.

3. Christina’s notice of appeal is in identical terms save that ground 2 is omitted.

96. During the hearing of the appeals, the parties were agreed that these challenges to the costs orders below should await the outcome of the appeal proceedings. That makes good sense having regard to the fact that the Court’s orders below, including as to costs, will need to be varied so as to reflect these reasons for judgment.

Conclusion

97. The most appropriate and convenient course is for the parties to have an opportunity to review these reasons for judgment and seek to agree orders, including in relation to costs of both the proceedings below and the appellate proceedings. If they are unable to reach agreement within 28 days hereof, each should file and serve an outline of written submissions, not exceeding 10 pages in length, in support of their respective proposed orders. Within a further 7 days thereof, each party should have an opportunity to file and serve a brief outline of written submissions in response, not exceeding 3 pages in length. Unless any party demonstrates that a further hearing is required, the Court proposes to determine final orders on the papers and without a further oral hearing.

98. For all these reasons, I would make the following orders in both the Armin proceedings and the Christina proceedings:

1. The parties should seek to agree orders which give effect to these reasons for judgment, including in relation to costs of both the proceedings below and the appellate and related proceedings.

2. If the parties are unable to reach agreement within 28 days hereof, each should file and serve an outline of written submissions, not exceeding 5 pages in length, in support of their respective proposed orders.

3. Within a further 7 days thereof, each party may file and serve within that time a brief outline of written submissions in response, not exceeding 3 pages in length.

4. Unless any party demonstrates that a further hearing is required, the Court will determine final orders on the papers and without a further oral hearing.

**********

Decision last updated: 11 October 2022