Zein v Wazen

[2021] NSWDC 463

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Zein v Wazen & Anor [2021] NSWDC 463

Hearing dates:

22 March 2021
23 March 2021
24 March 2021
25 March 2021
26 March 2021
29 March 2021
30 March 2021
15 July 2021

Date of orders:

07 September 2021

Decision date:

07 September 2021

Jurisdiction:

Civil

Before:

Coleman SC DCJ

Decision:

1 Verdict and Judgment for the first and second defendants.

2 The plaintiff to pay the second defendant’s costs of the proceedings.

3 If any party seeks a different order with respect to costs, there is liberty to apply on three days’ notice.

4 The exhibits may be returned after 28 days.

Catchwords:

Torts – Negligence – Motor Vehicle Accident – s 119 – Claim Allegedly Not Made in Good Faith – Joinder of the CTP Insurer as Second Defendant – Whether the Accident occurred as Alleged by the Plaintiff – Assessment of Damages – General Rule that the Court is to Determine All Issues in Question – Exception to the General Rule

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) ss 81, 119

Cases Cited:

Gulic v Boral Transport Ltd [2016] NSWCA 269

Nevin v B & R Enclosures [2004] NSWCA 339

Nguyen v Tran [2018] NSWCA 215

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Mr Nassim Khodr Zein (Plaintiff)
Mr Said Wazen (First Defendant)
Insurance Australia Limited t/as NRMA Insurance (Second Defendant)

Representation:

Counsel:
Mr J Jobson (Plaintiff)
Mr W Fitzsimmons SC with Ms S Warren (Second Defendant)

Solicitors:
Mr S Spinak (Plaintiff)
Moray & Agnew Lawyers (Second Defendant)

File Number(s):

2019/00065785

Publication restriction:

N/A

Judgment

1. The plaintiff, Nassim Khodr Zein, sues for personal injury damages pursuant to the provisions of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) arising from a motor vehicle accident which he says occurred on 1 May 2015.

2. By Amended Statement of Claim filed 13 August 2019, the plaintiff alleges that the first defendant, Said Wazen (Wazen), was the driver of the other vehicle involved in the motor vehicle accident and claims that he is liable in negligence for the plaintiff’s resulting injuries.

3. Wazen’s compulsory third party insurer, Insurance Australia Limited t/as NRMA Insurance (“NRMA”) denied liability under s 81 of the MACA. It subsequently made an application under s 119 of the MACA, alleging that the claim had not been made in good faith. NRMA was then joined to the proceedings as the second defendant.

4. Wazen did not take any part in defending the proceedings. He came to give evidence but only after the Court issued an arrest warrant for his failure to comply with a subpoena to attend and give evidence issued by the NRMA.

5. The practical effect of that procedural history is that, if the plaintiff does not succeed in proving his case that the motor vehicle accident occurred as alleged, then there will be verdicts in favour of both the first and second defendants. If the plaintiff is successful in proving all aspects of his case, then NRMA must indemnify Wazen as his CTP Insurer for damages payable to the plaintiff.

6. The key issues are as follows:

1. Whether the plaintiff can establish on the balance of probabilities that the accident did in fact occur as alleged by him (T3.42);

2. If the accident did occur as alleged by the plaintiff, whether it was as a result of negligence by Wazen;

3. If the accident did occur as alleged by the plaintiff, what are:

1. The extent of the plaintiff’s injuries as a result of the accident; and

2. The plaintiff’s entitlement to damages.

7. Although there is a dispute as to whether or not the accident occurred as alleged by the plaintiff, or at all, I will for convenience refer to the alleged collision between the plaintiff’s and Wazen’s vehicles as “the accident”.

THE PLEADED CLAIM

8. As with any claim in negligence, the starting point is to assess the allegations made in the pleadings. The Amended Statement of Claim alleges the following:

1. The plaintiff was the driver of a motor vehicle with registration BPN 15W;

2. Wazen was the driver of a motor vehicle with registration B247JP;

3. On or about 1 May 2015, the plaintiff was driving his vehicle along Northam Avenue towards the intersection of Chelmsford Avenue at Bankstown;

4. As the plaintiff approached the intersection with Chelmsford Avenue, Wazen’s vehicle, in breach of traffic regulations, entered the intersection striking the plaintiff’s vehicle;

5. Wazen was required to give way to the plaintiff;

6. The accident was caused by the negligence of Wazen, particularised as follows:

1. Entering the intersection contrary to a give way sign;

2. Failure to give way;

3. Failure to steal or control his vehicle so as to avoid an accident;

4. Proceeding at an excessive speed;

5. Failure to break so as to avoid impact;

6. Failure to keep a proper lookout.

9. NRMA has, in its Defence, not admitted any of the relevant factual allegations upon which the plaintiff’s claim is premised, nor has it admitted the allegations of negligence arising from those factual matters. That is, as NRMA made plain throughout the whole of the hearing, it puts the plaintiff to proof as to each of the factual allegations. Of course, if the plaintiff fails to prove the factual allegations as pleaded, he may not establish that any accident was caused by the negligence of Wazen, meaning he has no entitlement to damages.

10. As NRMA submits in its outline of written submissions:

1. The plaintiff’s claim is an action in negligence and as a consequence, the Civil Liability Act 2002 (“the CLA”) applies. Section 5 of the CLA defines negligence as a “failure to exercise reasonable care and skill”. The Court must be satisfied, on the balance of probabilities, that the defendant breached the duty of care he owed the plaintiff, as the driver of a motor vehicle, and that such breach was causative of any injury allegedly suffered.

2. Determining whether the plaintiff has discharged his onus of proof involves two steps:

   (a)   Has the plaintiff proven, on the balance of probabilities, the relevant factual allegations upon which the claim in negligence is premised?

   (b)   In the event the plaintiff has discharged his onus of proof in respect to the factual matters, are such findings sufficient to constitute a breach of duty of care, and consequential damage?”

THE PLAINTIFF’S ONUS OF PROOF

11. NRMA referred the Court to the decision of the New South Wales Court of Appeal in Nguyen v Tran [2018] NSWCA 215 (“Nguyen”). In that case, the allegation being considered by the Court was whether the respondent was in a vehicle involved in an accident as a result of the negligence of the appellant. At [57], Beazley P (with whom Emmett AJA and Bellew J agreed) said: “

1. Whether or not the respondent was in the car was the elemental factual controversy in the case. The respondent, as the plaintiff in the proceedings, had the legal onus to establish that he had been injured in the motor vehicle due to negligence of the appellant, and it, it followed, bore an evidentiary burden to prove he was. Otherwise his claim would fail.”

   12. Her Honour further noted that the appellant “bore neither a legal onus nor an evidentiary burden in the sense in which those concepts are properly understood”. As Her Honour further observed at [54]:

2. ….The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of the evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case.”

   13. What falls to be determined in this case, therefore, is whether or not the plaintiff can satisfy the Court that any collision occurred in such circumstances as pleaded in that it was caused by the failure of the defendant to give way to the plaintiff’s vehicle thereby constituting a breach of duty of care.

   14. In making this determination, it will be necessary for me to assess the whole of the evidence put before the Court. Fundamentally, it will be necessary to assess the reliability and credibility of the witnesses called.

THE WITNESSES AND EVIDENCE

15. The witnesses called were:

1. The plaintiff;

2. Miriam Fahs, the plaintiff’s ex-partner;

3. The first defendant;

4. Faoud Youssef, who was nominated by the first defendant as a passenger in his vehicle when the accident occurred; and

5. Mr Nigel McDonald, who made observations of the site of the alleged accident and of the vehicles said to have been involved in it.

16. There was also additional evidence relied upon by NRMA on the question of liability in relation to the plaintiff’s claim, namely, mobile telephone records and an expert report of Mr Glen Urquhart, Engineer.

17. For the reasons below, I do not accept that the plaintiff has discharged his burden of proof to establish the accident occurred as pleaded. He has not satisfied me that the accident was as a result of any negligence of the first defendant. I do not accept the evidence of any of the witnesses called by the plaintiff as to the circumstances of the accident. None of them were reliable or credible. Indeed, I formed the view that at times each of them was deliberately giving a version of events that was untrue.

18. I find the evidence of the plaintiff to be so devoid of reliability or credit that it simply cannot be accepted either as to the circumstances of the accident, or the injuries he said he suffered as a result.

19. I am grateful to have received written submissions from each of the parties. Much of what follows below is taken from those submissions, particularly those of the NRMA, which I generally accept.

THE ACCIDENT

The Plaintiff’s Version

20. In examination‑in‑chief, the plaintiff gave the following evidence regarding the circumstances of the accident:

1. That he resided at the address on Taylor Street in Condell Park with his partner, her two children and their son (T29.37);

2. The mother of the plaintiff’s partner had arrived at “maybe dinner time or just before” (T29.43) in her BMW;

3. After dinner, the plaintiff left to “get some sweets after dinner” (T30.20). He drove the BMW because it was parked behind his car and it was easier than moving it and driving his car. This was the car the plaintiff was driving at the time of the motor vehicle accident (T30.02‑T30.04);

4. The plaintiff drove the BMW from his Taylor Street residence alone (T30.46), heading towards a sweet shop next to “Bankstown Bakery”;

5. At that time, it was raining (T30.26);

6. The plaintiff arrived at the sweet shop “Maybe before 10 o'clock” (T30.30);

7. After he left the sweet shop, he proceeded to drive home down Northam Avenue at about 40‑50km/h;

8. He said that the headlights on the BMW were on at the time of the accident (T280.15; T286.07);

9. The plaintiff says that, as he approached the intersection, he was looking forward to see where he was driving until “there was just a bang” (T 34.50; T407.10). He denied seeing a car at all in the street or the intersection before the accident and was unaware where it came from (T35.49‑T36.4). He said that he had no warning that the car was coming in front of him and said: “No. It, it wasn’t in front of me. It was from the side” (T36.42);

10. The plaintiff believed that the other vehicle drove out of the side street and directly into his car: (T431.18; T431.32);

11. After the accident, the plaintiff said that he got out of his vehicle and exchanged particulars with the other driver (T37.14‑30; T48.11; T49.38; T410.16). He recalled observing a second male walk from the passenger side of the other vehicle shortly after the accident and remained in the company of the driver of the other vehicle whilst particulars were being exchanged (T410.21‑31);

12. The plaintiff said that he remained at the scene of the accident until a tow truck arrived and he provided the tow truck driver with his address prior to him going home (T37.35);

13. The plaintiff said that he then walked home after the accident (T37.40).

NRMA SUBMISSIONS ON THE PLAINTFF’S VERSION AND HIS CREDIT

21. NRMA has made detailed submissions as to why the plaintiff’s version should not be accepted and as to his credit generally. I accept those submissions overall and will refer to them below. I will also refer to the plaintiff’s submissions. I have also had regard to the plaintiff’s submissions in reply. It is apparent from what is set out below that I do not accept the plaintiff’s submissions (in chief or in reply). In particular, I do not accept that NRMA has made any submissions that misrepresent the evidence or are improperly made.

22. NRMA submits that the plaintiff’s credit was overwhelmingly impugned in respect to both liability and damages. It submitted that, in the circumstances, the Court would not accept the plaintiff’s evidence as to the circumstances of the accident and liability generally unless that evidence was independently corroborated by other objective evidence. I accept that submission.

23. I formed the impression of the plaintiff over the course of his giving evidence that he would often give long winded and non‑responsive answers. Further, when confronted with other evidence, for example histories to medical professionals or documentary evidence which contradicted his version, he would immediately change his evidence. He was willing to give evidence which he thought would best serve his case, rather than giving truthful answers.

24. NRMA points to a number of matters which supported its submission as to the plaintiff’s credit.

25. Firstly, as to the reason for the plaintiff being out in his partner’s mother’s car in the first place, the plaintiff said that he had left his home after dinner to get some sweets (T30.20). Initially in cross‑examination, he maintained that he had dinner at home with his family following which he drove to the sweet shop (T232.37; T233.10‑15). When confronted with a history he provided to Dr Maniam on 6 July 2015 (Exhibit A, p 88) (only nine weeks after the accident) that he was “returning home after visiting friends” when the accident occurred, the plaintiff was not prepared to accept any inconsistency between his evidence that he had had dinner at home and this history. Subsequently, the plaintiff said (T236.35‑38):

“I believe I picked up the sweet but, yeah, I was visiting friends. I went had a lunch. I was visiting friend, picked up sweet… And driving back home”

26. This is an example, in my opinion of the plaintiff changing his version of events when confronted with other evidence contrary to the original version he had given. He lacked credibility by doing so without any adequate explanation as to why he had changed his versions.

27. In respect to the plaintiff’s evidence referred to above that he remained at the scene until a tow truck arrived and provided the driver with his address before going home, NRMA notes that on day four of the hearing, the plaintiff was unable to recall whether the tow truck driver had arrived prior to him leaving (T410.45).

28. I have also referred above to the plaintiff’s evidence in chief where he said that he walked home after the accident. He estimated that the time to walk home from the location of the accident was only 3‑4 minutes (T37.43). The plaintiff’s then partner, Miriam Fahs, whom the plaintiff lived with and was pregnant with his child at the time of the accident, was also adamant that she recalled the plaintiff walked home after the accident (T385.07; T391.34; T391.46; T392.09).

29. NRMA pointed to other versions given by the plaintiff as to how he got home after the accident. In July 2015, a mere two months after the accident, the plaintiff told Dr Rosenthal that a friend took him home (T399.48, Exhibit AA). He was cross‑examined on this by senior counsel for NRMA. He said that the “friend” he was referring to when he told this to Dr Rosenthal was just a person who is at the scene of the accident who he did not know (T400.11). He maintained in cross‑examination on day four of the hearing, contrary to his unequivocal evidence in chief, that he had a recollection of someone driving him home (T401.06).

30. The plaintiff was then confronted with a history recorded by Dr Muratore in October 2020. That history records that the plaintiff was collected from the accident scene by Ms Fahs (Exhibit AA, p 91). The plaintiff stated he was unable to recall and said that it “could be right” that his partner drove him home and that he was not driven home by a friend or a random person at the accident scene (T401.39). The plaintiff ultimately said he did not really remember 100% how he got home (T399.09).

31. I accept the second defendant’s submission that the plaintiff’s evidence in this regard was unsatisfactory and lacked credibility. There is no explanation as to why he could not recall how he got home after the accident or why he had given differing versions.

32. NRMA pointed to other matters following the accident which significantly and adversely impacted on the plaintiff’s credit. They are contained in [44]‑[48] of the second defendant’s written submissions. I accept those submissions. I will mention some of them below.

33. The plaintiff was inconsistent with respect to how many times he had travelled outside of Sydney after the accident. He originally said he had travelled once to Melbourne by plane (T473.30) and once to Lawrence in Queensland to drop off his Range Rover before returning to Sydney by train. He was confronted with entries on his Facebook page “checking in” (in the sense of indicating that he was at that location) at Sydney airport travelling to Brisbane (Exhibit O; T47.36). His explanation that he was hiding from his girlfriend and fabricated the Facebook post whilst near the airport and driving to eat something at Rockdale was not credible.

34. The plaintiff gave further evidence about a trip to Melbourne and hiring a car as detailed in [46] of the second defendant’s submissions. That evidence was inconsistent and not credible. I do not accept it.

35. The plaintiff was also confronted with further Facebook posts detailing him eating at a number of fine dining restaurants and shopping at high‑end boutiques whilst in Melbourne. I accept the second defendant’s submissions that the plaintiff engaging in these activities is wholly inconsistent with his assertions as to an apparent lack of funds due to injuries he suffered in the accident and him having to sleep in his car and at the back of his fruit shop. I do not accept the plaintiff’s explanations that those stays were paid for by his partner or a lady friend who had booked the hotels and then gave him the cash (see references in [47]‑[48] of the second defendants submissions).

36. Significant in terms of the assessment of the plaintiff’s credit, is his evidence with respect to supposed disabilities he says he has suffered since the motor vehicle accident. He told Dr Maniam that he was unable to work for three months after the accident. He maintains that the disabilities suffered as a result of the accident mean he is unable to engage in significant work or domestic tasks. I accept the second defendant’s submissions that the claims of these disabilities are entirely inconsistent with surveillance evidence of the plaintiff working at his fruit shop and other attendances by him at Concord Hospital in the years following the accident.

37. As the second defendant submits, surveillance evidence (Exhibits P, Q, R and S) reveals that the plaintiff was engaging in various physical activities at his work which were wholly inconsistent with his claimed disabilities. The plaintiff was subject to surveillance within two months following the accident where he was revealed to have been working at his fruit shop. There was more recent surveillance showing him loading and unloading produce without assistance. I accept the second defendant’s submission that his responses to the cross‑examination of him on these matters was not credible. His explanation that he was doing this work to avoid older workers the embarrassment for their age and not being able to assist him should not be accepted. Further, his explanation that the younger worker who was working for him could not help him with the loading and unloading because he was only paid for restaurant deliveries was also not credible.

26. NRMA has also made submissions with respect to the inconsistencies in the plaintiff’s evidence based upon the clinical notes of Concord Hospital: see [53]‑[56] of the second defendant’s submissions. Those submissions show that on the four occasions referenced when the plaintiff was asked about his medical history and current medication, he did not disclose a motor vehicle accident or the alleged significant disabilities from which he said he was suffering as a result of the accident. He did not disclose any prescription medicine to hospital staff other than Mobic, which he had been prescribed before the accident. I accept the submissions of NRMA that the plaintiff’s explanation for these discrepancies (in cross‑examination commencing at T460) does not reflect well on the plaintiff’s credit.

27. My own observation of the plaintiff in the witness box did not accord with the histories he had given to various practitioners of him having difficulties in sitting for any period of time (see the references in [57] of the second defendant’s submissions). I formed the view that the plaintiff was able to sit without significant discomfort for long periods of time while he was giving his evidence. He did ask to stand from time to time and appeared to be stretching while he was in the witness box, but my overall impression was that this was out of contrivance rather than necessity.

28. The second defendant has also detailed matters with respect to the operation of the plaintiff’s various businesses, his accounting records and the renewal of the lease on his fruit shop in Castlecrag ([57]‑[64] of the second defendant submissions). I will not traverse all of those matters. I agree that the plaintiff’s evidence in respect to those matters as set out in the second defendant’s submissions reflected poorly on his credit. The plaintiff, in answering those questions once again, in my opinion, appeared to me to be attempting to tailor his evidence to suit his case rather than give honest answers.

PLAINITFF’S SUBMISSIONS ON HIS CREDIT

41. Mr Jobson, Counsel for the plaintiff, submitted that the plaintiff gave evidence in English, which was his second language. He said the plaintiff repeatedly stressed that some words were foreign to him and some words he used were not meant to be definitive.

42. Mr Jobson also submitted that the cross‑examination of the plaintiff was repetitive and lengthy. He was questioned on a variety of topics which were returned to a number of times over four‑and‑a‑half days. Mr Jobson submitted that this may have confused the plaintiff with English not being his first language.

43. Mr Jobson submitted that the plaintiff did his best to answer questions honestly and that he was consistent in his answers even if they were against his interests.

CONCLUSION AS TO PLAINTIFF’S CREDIT

44. Whilst it is true that the plaintiff sometimes had to have words repeated to him, or some answers he gave used words in a definitive sense which he then tried to qualify, I do not accept that he did not understand the questions or the proceedings generally. It was expressly said he did not require an interpreter. During the course of his evidence, if I formed the view that he did not understand a question, I would stop to ensure he did. Senior counsel for the NRMA was also, from my observation, careful to ask questions in a way which were easily understood and if there was any doubt, did his best to ask them again. I formed the view that the plaintiff understood the questions he was asked and knew what he was saying when he answered them. The fact that English was the plaintiff’s second language does not impact upon my findings as to his credit.

45. As to the length of the cross‑examination, whilst it extended over some days, I do not accept it was unfairly repetitive or confusing. There was no objection during it suggesting otherwise. I do not accept that the plaintiff was confused. Rather, at times when confronted with inconsistencies which he understood, he gave answers attempting to change his version of relevant events to get around those inconsistencies.

46. Overall, I formed the impression that the plaintiff was not a credible witness. In fact, I formed the view that his evidence as to the circumstances of the accident was dishonest. Nor do I accept the plaintiff’s evidence as to the disabilities that he says he suffers as a result of the accident. I have such reservations about the credit of the plaintiff and the veracity of his evidence that I do not consider it necessary to assess what loss he has suffered as a result of the accident. That is because in order to do so I would have to make assumptions based upon the plaintiff’s evidence which were wholly inconsistent with my views as to his credibility and reliability. I will return to this below.

ASSESSMENT OF OTHER WITNESSES

47. As I have observed above, in order to assess whether or not the plaintiff has discharged his onus of proof, it is necessary to consider all of the evidence not just that given by him. There are several other witnesses called. I will deal with each in turn.

MIRIAM FAHS

48. Miriam Fahs was the partner of the plaintiff, the mother of one of his children and pregnant with another, who was living with him at the time of the accident. She gave evidence on two separate days. For the reasons which follow, I accept the second defendant’s submissions that she was a witness who was not credible and was unreliable. I would not accept her evidence with respect to the plaintiff’s movements before and after the motor vehicle accident and with respect to her phone contact with him unless it was otherwise corroborated by objective evidence.

49. Her version as to why the plaintiff had gone out on the Friday night of the accident (T366.45) was because he wanted to go and see his friends. She had said to him that if he was going past, could he stop and get her some sweets. The plaintiff said he was “going anyway” and he then left in her mother’s car. He subsequently got into an accident. She said he had left the house sometime after 7:30pm (T367.08). Of course, this is inconsistent with the plaintiff’s ultimate version of his evidence that he had gone to a friend’s for a lunch and went to the sweet shop on the way home.

50. She said after the plaintiff left, the next she heard from him was a telephone call when he rang her to say that he was walking home after he had had an accident in her mother’s car (T385.06‑17). She was adamant she had received this phone call from the plaintiff and recognised the number as she had him listed as “Babe” on her phone contacts and this was what had come up when that call was received.

51. There was evidence about Ms Fahs’ phone number at the time. She had denied that the mobile phone number she had at that time ended in “612”. The second defendant asks me to infer that that denial should be rejected because it came when it was put to her that there had been contact between the 612 number and the first defendant on the night of the accident (T387.37).

52. Ms Fahs’ initial evidence was that she could not remember what her phone number was as at the time of the accident because she had changed her number somewhere between 5‑ 10 times between 2015 and the date of the trial. Yet, on returning to the witness box the next day, she then claimed that she knew her phone number at that time ended in “388”. Additionally, whilst at first she could not identify her mother’s phone number, she was able to remember it in full on her return. As the second defendant points out, she initially claimed that her mother had changed her number over the years yet she later said that her mother had the same phone number for 15 years and that was why she was able to recite it (T383.19; T524.49). This evidence lacked credibility.

53. Another matter which, in my opinion, significantly affected Ms Fahs’ credibility was her evidence with respect to having attended a lunch during the course of the hearing with Mr Youssef. Mr Youssef was nominated by Wazen as being a passenger in his car at the time of the accident. Ms Fahs claimed that she had never met Mr Youssef before. She says that they were both sitting outside the Courtroom and decided to have lunch together. She said that they did not talk about why they were there and she was unaware that he was at Court for the same hearing.

54. I found this evidence wholly unbelievable. The fact of her lunching with Mr Youssef arose during her cross‑examination after the luncheon break. I formed the view she was surprised at having been caught out and was not giving honest evidence in response to senior counsel’s questions on this topic.

55. I will not traverse all of the references given in the second defendant’s submissions (see: [65]-[76]) which deal with Ms Fahs' evidence and her credibility. I generally accept those submissions. I accept some of her evidence was inconsistent and I formed the impression that she was giving answers which she thought would assist the plaintiff’s case rather than giving truthful evidence. This included her evidence with respect to what the plaintiff did around the house before and after the accident.

56. The plaintiff submitted that Ms Fahs' credit ”…was never maligned in cross‑examination.” For the reasons above, I cannot accept that submission. I also do not accept the plaintiff’s submission that the cross‑examination of her with respect to the telephone records went nowhere. I have dealt with that evidence in part above and will do so in more detail below.

57. It is true that she gave evidence that the plaintiff had been in an accident and had been injured. However, because I have found there are significant issues with her credibility, and there are inconsistencies with her evidence, I do not accept her evidence as probative of the events of that night. In any event, she cannot assist the plaintiff as to the mechanism or circumstances of the accident as she was not there.

THE FIRST DEFENDANT: SAID WAZEN

58. As I have set out above, the first defendant did not enter an appearance in the proceedings. He was subpoenaed to give evidence by the NRMA. He did not comply with that subpoena and I issued a bench warrant for his arrest. That warrant was executed and he was brought before the Court. He returned to give evidence on a later day. I mention those facts as background, however, my assessment of his evidence as a whole and his lack of credibility with respect to the circumstances of the accident, lead me to conclude that he deliberately avoided coming to Court to give evidence. It was only the issue of the bench warrant that forced his hand.

59. Wazen was the driver of the Audi which was the other car involved in the accident with the plaintiff.

60. On the night of the accident and after it took place, Wazen made contact with NRMA Insurance by telephone for the purpose of reporting the accident and him making a claim (Exhibit G). The transcript of the phone call with the insurer revealed Wazen providing the following information as to the circumstances of the accident:

“…I’m going towards leaving my house and my passenger and on Chelmsford Avenue near the corner of Northam Avenue and [unclear] there is a stop sign there and it was raining heavy and the car in front of me and I was like going slowly to see if any cars coming. You know what I mean, when you, stop sign, car is parked on the corner and another car parked on the corner there and you know when you moving to see if any cars coming through, like in front of me and I went forward there to see if any car hit me on the side.’

(emphasis added)

61. Wazen was adamant that there was “heavy rain” at the time of the accident. He told the insurer his mobile number was 0422 047 699. He gave other details of his interaction with the plaintiff when they were exchanging details. Relevantly, they included that the plaintiff was shaking and remained in the car whilst he (Wazen) wrote everything out for him.

62. He told the insurer that his car was to be towed to 5–7 Norman Street in Peakhurst, New South Wales, to a business known as “W & R Smash Repairs” (as it turns out, that business is operated by Youssef who Wazen said was his passenger at the time of the accident).

63. On 23 May 2015, Wazen provided a statement to police (Exhibit Z), in which he said the following:

On 1^st May 2015, 9:50pm going to get some dinner, I was engaging a stop sign on Chelmsford Avenue about to cross Northam. I was heading in the direction to South Chapel Road. It was heavy rain and there were many cars obstructing the view of Northam Avenue on my left and right. I was going forward bit by bit to look for clearance. Another vehicle was coming the opposite way on Chelmsford Avenue. It was a Hilux Navara vehicle high off the ground as the headlights were in my eyes. I had to keep crawling out of the intersection for clearance. I believe I may have been a half a car out of Chelmsford Avenue and between Northam Avenue when the BMW hit my drivers side between the front light and the front door.

(emphasis added)

64. Wazen told investigating police that he organised the tow truck for both his and the plaintiff’s vehicles. Importantly, he also told the police that he had a passenger in his car at the time of the accident. He said that the passenger agreed with his version of events.

65. In evidence before the Court, Wazen said that he told the truth about what had happened in the accident when providing the statement to the police (T612.45‑612.6). When he was providing the statement, the police officer was writing in her notebook. At the conclusion of the interview, the police officer showed Wazen the notebook, asked that he read it, which he did, and he signed it as true. He identified the statement contained in Exhibit F and his signature.

66. During the course of the insurer’s normal investigations into the accident, on 9 June 2015, Wazen was interviewed by Anthony Moss, an investigator appointed by the property damage insurer (which also happened to be NRMA). The investigator then typed his interview into a statement. Wazen said he had told the truth to the investigator when answering his questions (T612.23). Wazen read the statement typed by the investigator, made corrections, and signed the statement as being truthful.

67. The statement (Exhibit W) contained a handwritten amendment with respect to the issue of whether there was a passenger in Wazen’s car at the time of the accident. Originally, Wazen said there had been a passenger in the car. Following a phone call he received during the interview with the insurance investigator, he corrected that (see Exhibit AM). He told the investigator after this call that there had not been a passenger in the car. As is set out below based on an analysis of the phone records, I accept that it is probable that the phone call Wazen received at that time was from Youssef.

68. The details of what Wazen told the investigator as recorded in his statement are as follows. He said that, at the time of the accident, he was the driver with a passenger who he initially identified as Fouad Youssef. He said it was raining heavily and that the roads were wet. He said that he went to pick up Youssef from Peakhurst and returned to his home to collect some clothing. He said that he and Youssef left his home at around 9:40‑9:50pm to drive to Brighton Le Sands for dinner. He said that after dinner, Youssef was to stay at Brighton Le Sands.

69. In relation to the circumstances of the accident, Wazen said that he left his house, he drove through the intersection of Chelmsford and Northam Avenue in an easterly direction from his home. He said he stopped at the give way sign and proceeded slowly out into the intersection. He claimed there were a number of cars parked on either side of the road.

70. He claimed that it was raining heavily and accordingly, visibility was poor. He said he slowly edged his car into the intersection. He said he had moved about half a cars length into the intersection, proceeding slowly looking to the right and left, when all of a sudden, he heard a “loud bang”. He said he realised that there had been a collision with a dark coloured car, and that the other car had sustained front end damage.

71. Wazen said that the other driver remained in his car whilst particulars were exchanged. He told the investigator that he found the name for Sam’s Towing on his phone. He said that a tow truck arrived approximately 20 minutes later, towing both cars away.

72. Wazen said that after the cars were towed away, he walked home (about 200m from the accident). He said his passenger, Youssef, left and caught a cab home.

73. NRMA submits, and I accept, that Wazen’s oral evidence was inconsistent and lacked credibility. For the reasons that follow, I do not accept it unless corroborated by objective evidence.

74. As to his relationship with Youssef, Wazen said that he had been a friend of his for somewhere between 3‑5 years prior to the accident (T614.3‑615.9). He said that he was with Youssef on the night of the accident and confirmed that they had planned on going out to dinner together (T613.34‑615.27). Yet, inconsistently with this evidence, on other occasions he denied the friendship and said they never went out together (See T615; T657).

75. He was also inconsistent as to whether he had a passenger on the night of the accident. He had originally told the NRMA and the police he did have a passenger. However, he later denied in his evidence that there was a passenger in his vehicle (T615.44‑615.35). He later said (T624.25) that he did tell the investigator that Mr Youssef was in his car when the accident occurred. He admitted that he might have contacted Mr Youssef before the accident (T632.40). The telephone records (Exhibit AH) confirm this.

76. I do not accept he was being truthful when he sought to retract his earlier statements that Mr Youssef had been a passenger in his car at the time of the accident.

77. He was cross‑examined by counsel for the plaintiff and the NRMA as to the circumstances of the accident. He gave inconsistent evidence as to whether his headlights, as opposed to his parking lights, were on at the time of the accident.

78. His evidence as to how the tow truck driver was contacted bordered on the bizarre. He initially stated that he contacted the tow truck operator using his own phone. So much seemed sensible as he said that the contact for the tow truck was contained within his phone from a previous accident (T630.44‑631.20). However, when being cross‑examined by counsel for the plaintiff (T654‑655), he agreed with propositions put to him that:

1. He used the plaintiff’s phone to ring the tow truck operator at 10:11pm;

2. The tow truck driver then rang back on the plaintiff’s phone and that he (Wazen) spoke at that time;

3. He instructed the tow truck operator to ring him on his own phone; and

4. He received a telephone call to his phone from the tow truck operator at 10:13pm.

79. I do not accept this is what happened. It is not believable that if he had the tow truck driver’s number in his phone, he would use the plaintiff’s phone to call him, then tell the tow truck driver to call him on his own phone. It beggars belief that he would not just have used his own phone in the first place. I also note that this version of events was not given by the plaintiff. The plaintiff said he had no specific recollection of calls made on his phone whilst at the scene of the accident (for example, see T402.25).

80. I formed the view that Wazen’s evidence about this matter was a construct. I do not accept it.

81. As to how the accident occurred (T644‑647), Wazen said that he did not see the plaintiff’s car at all prior to the accident. This was despite him continuously looking in both directions prior to the collision, with a particular emphasis on looking to his right, given this was the direction from which cars would be first approaching. He said in evidence that his vision was affected by a 4WD travelling towards him from the opposite direction. However, I accept the NRMA submission that the lights from that vehicle travelling towards Wazen’s car ought not have affected his view of vehicles coming from the left or right.

79. Other matters relevant to Wazen’s evidence and his cross‑examination by plaintiff’s counsel which were described as “curious” by the NRMA in its submissions (and which I find highlight problems with Wazen’s evidence) were:

1. It was put to him that his headlights were not on at the time of the accident, contrary to the plaintiff’s own evidence, and particulars provided by his solicitor, that the first defendant’s headlights were on.

2. It was put to Wazen that Mr Youssef was not at the scene of the accident.

3. The alleged use of the plaintiff’s phone to make calls to a tow truck operator.

4. Given the plaintiff’s own evidence, and the statement contained in his insurance claim form, there can be no issue that there were two occupants of Wazen’s vehicle at the time of the accident. If it was not Mr Youssef, as put by Counsel for the plaintiff, who was it? Nothing was put to Wazen as to the identity of the alleged “friend” if it was not Mr Youssef.

83. The plaintiff submits that the only evidence given by Wazen relevant to the plaintiff’s claim is that the plaintiff and the first defendant were closely situated (geographically) on the night of the motor vehicle accident. He submits that the plaintiff’s description of the accident supports the overwhelming evidence that the plaintiff’s vehicle and Wazen’s vehicle were in a collision that night and that the collision was the fault of the first defendant. The plaintiff submits that, having regard to the first defendant’s evidence, there is no other findings available to the Court except that the vehicles struck each other in the manner described by the plaintiff.

84. I do not accept the plaintiff’s submissions. I found Wazen’s oral evidence to be lacking credibility. He was a reluctant witness who did not impress me as being truthful on matters which he thought may have impacted on the plaintiff’s case. Insofar as he gave evidence as to the circumstances of the accident, I do not accept them.

FOUAD YOUSSEF

85. The final witness whose credibility or reliability is relevant is Fouad Youssef. He was said to be the passenger in Wazen’s car at the time of the accident. On the basis of Wazen’s evidence and his out of court statements, I am satisfied that at the time of the accident, Wazen and Youssef had a relationship of some years standing. Further, I am satisfied that on the day of the accident there was communication between those two men at 6:57pm (Exhibit AH). I accept the NRMA submission that this evidence is consistent with arrangements being made for their meeting later that evening.

86. When he first commenced his evidence, Youssef denied any non‑professional relationship with Wazen. I say non‑professional as the evidence established that Youssef had previously repaired one of Wazen’s cars at his smash repair business. He also denied any interaction with Wazen on the day of the accident.

87. I do not accept Youssef’s denials of a relationship with Wazen, nor that he was not a passenger in the car at the time of the accident. I formed the view that he was giving dishonest evidence. When confronted with objective material which was inconsistent with what he had said, he became bellicose and aggressive. At one stage, he said after being challenged on a matter, in terms, he “had a bad memory now” (T563.32). I formed the view that he was saying, in effect, if his answers were not accepted he would feign memory loss on other matters. He was a very unimpressive witness.

88. The NRMA submissions ([110]‑[122]) set out specific criticisms of Youssef’s evidence. I do not intend to repeat them all. I generally accept them in reaching the conclusion I have with respect to Youssef’s credibility.

89. I do note that Youssef confirmed his mobile telephone number was xxxx xxx 876, and that this was his mobile phone number at the time of the accident (T553.9‑23). He was asked a series of questions in respect to his knowledge or contact with Wazen prior to the accident. He initially emphatically denied that he had had any previous contact with Wazen prior to completing a repair quote on 25 May 2015 (T552). He had no recall of the SMS communication with Wazen on New Year’s Eve 2014, which was clear from the phone records in Exhibit AH. When confronted with a telephone call at 6:57pm on the date of the accident with Wazen’s number, Youssef accepted that he might have “made a mistake” in respect to his previous evidence that he had had no contact prior to 25 May 2015 (T558.34). This was an example of him changing his tune when confronted with objective evidence which was contrary to his evidence.

90. Youssef finally conceded he may have had communication with Wazen prior to the accident. I find it is probable that he did for some years beforehand in a social context.

91. I do not accept his denials that he had no contact with Wazen on the night of the accident, or knowledge of any involvement in the accident.

92. I accept the NRMA’s submissions that Wazen’s vehicle was towed to the holding yard of W & R Smash Repairs (Youssef’s business), where it remained until the following Tuesday. It was a write‑off and sent off for auction. There was subsequent contact with the insurer by Youssef’s smash repair business informing the insurer the vehicle was a write off.

93. I accept in those circumstances that Youssef’s repeated denials of any knowledge of the accident, or for that matter Wazen, is wholly inconsistent with the vehicle being transported to his holding yard, and his business assessing it as a write off. I reject his evidence in that regard.

THE MOBILE TELEPHONE RECORDS

94. There was quite a deal of evidence dealing with the telephone records of contact between various mobile phone numbers. NRMA submits that the mobile telephone records (Exhibits U, AE, AF, AH, AJ & AK) are significant in that they establish lines of communication between various parties which demonstrates inconsistencies with their respective evidence. NRMA submits that this evidence supports its contention that when the evidence is considered as a whole, the Court would not be satisfied the plaintiff has discharged his evidentiary onus.

95. I accept that the evidence is significant. I accept it does allow inferences to be drawn as to connections between the various witnesses. Those inferences do not assist the plaintiff in this case. I will set out the NRMA submissions ([124]‑[144] with the emphasis as set out in those submissions). I have set them out in full as they carefully analyse the links between the respective phone numbers:

The Plaintiff’s calls

1. The plaintiff confirmed in his evidence that his mobile number at the time of the subject accident was 0400 716 007 (t402.11-19). This is consistent with various documents completed by him. Ms Fahs similarly confirmed this was his number (T517.42).

2. Exhibit AK lists all mobile communication to and from the plaintiff’s number on the day of the accident.

3. It is the plaintiff’s case that the accident occurred at or about 10:00pm. The last call made from the plaintiff’s mobile number prior to the accident was at 7:03pm to mobile number 0404 377 388.

4. There are only two calls recorded for the plaintiff’s mobile number after the accident. The first call was at 10:11pm initiated from the plaintiff’s mobile phone for a duration of 20 seconds to the number 0426 252 612. This number is of significance in that the first defendant receives a call from the same number at 10:13pm for a duration of 57 seconds. The only other call is at 10:14pm for the duration of 33 seconds when the plaintiff received a return call from the same number.

5. The plaintiff was uncertain as to the calls made by him after the accident. As noted above, Ms Fahs was certain that the plaintiff called her after the accident.

6. The records demonstrate regular contact between the plaintiff and 0426 252 612 between December 2014 and May 2017, including numerous communications on Christmas Day and Boxing Day 2014 (only a matter of months prior to the accident).

7. In the week before the accident (22 April 2015) there were 10 calls between the plaintiff’s mobile number and that number. On the day before the accident, there were 2 calls between the plaintiff and that number. The communication with that number continues with the plaintiff on the day after the accident at 10:27am.

8. Given the extent of communication between the plaintiff and the number ending in 612 the Court would not accept the plaintiff’s evidence that he had no specific recall of the numbers/persons called after the accident.

9. In any event, the plaintiff is not the only party/witness who had contact with the 612 number. In the circumstances, the owner of this number is of some significance.

To Whom does the Number 0426252612 Belong?

1. There is no direct evidence on this issue. However, there is sufficient circumstantial evidence for the Court to make a finding that on the night of the accident, it was in the possession of the plaintiff’s partner, Miriam Fahs.

2. Miriam Fahs did not recognise the mystery number of 0426 252 612. Given the evidence of Ms Fahs that the plaintiff called her after the subject accident, and that the only calls made to and from the plaintiff’s number after the alleged accident were to the mystery 612 number, it would seem from the independent documentary evidence that the 612 number belonged to Ms Fahs, at least at the time of the accident on 1 May 2015.

The Significance of the Number 0426252612

1. Ms Fahs initially indicated that she did not know whether the 612 number was her number. Ms Fahs denied that she knew the first defendant, and denied that she had ever had phone contact with the first defendant.

2. Ms Fahs also denied that she knew Mr Youssef and denied that she had any phone contact with Mr Youssef. On day five, Ms Fahs acknowledged that she went and had lunch with Mr Youssef prior to giving evidence but asserted that she had not met him prior to that day whilst waiting outside the court room. Ms Fahs went as far to suggest that she did not ask Mr Youssef why he was at Court that day and that they did not discuss which matter or which court proceedings there were at Court to give evidence at.

3. The first defendant has given the mobile number 0422 047 699 to various parties and that is demonstrated in the documents that are before the Court.

4. On the day of the accident, prior to the alleged accident occurring, the first defendant received a phone call from the 612 number at 5:47pm with a duration of 25 seconds. The first defendant made a call back to the 612 number at 5:58pm. The only other calls made or received on the first defendant’s phone after that, and before the subject accident, was a phone call from the first defendant to Mr Youssef at 6:57pm for the duration of 1 minute.

5. The next voice call recorded on the first defendant’s phone records is a call from the 612 number at 10:13pm for the duration of 57 seconds. There were no voice calls recorded for the first defendant’s phone between 6:57pm and 10:13pm on the day of the accident.

6. The phone records demonstrate that the first defendant also communicated with the 612 number on the day after the accident, with voice calls being exchanged between the two numbers. Despite these calls, the first defendant was unable to identify the owner of the 612 number during questioning.

7. The proposition put by the plaintiff’s Counsel that the 612 number was a tow truck operator is inconsistent with the records given contact between that number and the defendant prior to the accident and the day after the accident. Similarly, it is inconsistent with the extensive contact with the plaintiff’s mobile number between December 2014 and May 2017 as traversed above.

8. Mr Youssef acknowledged that his mobile number was 0418 205 876 at the time of the accident, and this is the number that he provided as his mobile number in June 2015. The phone records Mr Youssef similarly establish contact with the 612 number between 23 December 2014 and 12 May 2017 via voice calls and SMS. Mr Youssef was unable to identify the owner of the 612 number from his recollection.

9. It is extraordinary that despite the plaintiff, the first defendant and Mr Youssef having regular contact with the 612 number, none of the parties volunteered any knowledge of the number or its owner.

Communication Between the First Defendant and Mr Youssef

1. Despite the denials of Mr Youssef as to his relationship with the first defendant, the telephone records establish, as discussed above, contact of sufficient regularity between the two individuals to make a lie of his evidence in that respect. Of even more significance is the communication between the two on the evening of the alleged accident, wholly implicating Mr Youssef in the first defendant’s activity, whatever that be, on the night in question. One must ask rhetorically, if the two individuals had nothing to hide, why deny they were together on that very night?

   96. In relation to the phone records, the plaintiff submits the attempt to rely on them to impugn the plaintiff’s credit fails. He submits that if those records were used to establish a link between the plaintiff and the first defendant or any other unnamed person, this has failed.

   97. The plaintiff accepts that there were five calls on the night of the accident that relate to the plaintiff and the defendant. He submits that those calls were made after the accident and there is no evidence to suggest that the plaintiff knew, telephoned or made contact with the first defendant prior to the motor vehicle accident. He submits there is no evidence of the first defendant previously receiving calls from the telephone number of the plaintiff on any other occasion. The only link to the plaintiff and the first defendant is the call by the plaintiff to a telephone number that night and three short calls in return to the first defendant’s telephone. In circumstances where the plaintiff has no memory of the phone calls that night and the first defendant gave no evidence as to who the three calls were from that night, the plaintiff submits that it would be speculation to draw any conclusions, in particular which inferred improper conduct by any of the parties.

   98. The plaintiff submits that it is more probable that those calls related to the towing of the vehicles because the plaintiff gave evidence of a number of persons that he used to drive his delivery trucks over time whilst he was running his transport business. It is submitted that it is more likely than not that the plaintiff called a number that he was familiar with to seek advice as to who was the tow truck driver that would be available to come and assist.

   99. It is submitted that there is nothing to suggest in the evidence of the plaintiff or the first defendant knew a tow truck company and there is no evidence produced by the NRMA to suggest that those calls were directed to a tow truck company and that that company was known to the plaintiff.

   100. The plaintiff submits that the second defendant makes no positive assertions with respect to these matters but seeks to “muddy the waters with unsubstantiated inferences”. He submits that in the circumstances the telephone records relied upon do not point to an accident not occurring as the plaintiff has said.

   101. I accept the submissions of the NRMA. I accept that the phone records establish the matters they suggest. In particular, I accept that the overwhelming inference is that the phone with the 612 number was in the possession of Ms Fahs on the night of the accident. The significance of that finding is that this establishes a link between Wazen and that phone number, and if in the possession of Ms Fahs, then a link between Wazen and her and the plaintiff. There were also calls between Youssef’s number and the 612 number. This inferentially establishes a link between Youssef and Fahs and/or the plaintiff.

   102. The phone records also establish a link between Youssef and Wazen. I accept NRMA’s submission that the records establish contact of a sufficient regularity such that any evidence of either of them that they did not have a pre‑existing relationship is false.

   103. The phone records also establish contact between the two on the night of the accident. This contact reinforces my rejection of Youssef’s evidence about his whereabouts on the night and makes it more likely that Wazen’s statement to the police and NRMA investigator that Youssef was a passenger in his car at the time of the accident was true.

THE EXPERT EVIDENCE

104. The NRMA also relied on two reports of Mr Glen Urquhart dated 25 June 2018 and 6 December 2019 (Exhibit Z, pp 128‑249). Mr Urquhart was not cross-examined and the plaintiff did not rely on any expert liability evidence in reply.

105. Mr Urquhart’s opinion was, in part, reliant upon evidence collected by Mr Nigel McDonald in the month following the accident (25 June 2015). Mr McDonald’s evidence is summarised in [146]–[149] of the NRMA’s submissions. It included evidence of his observations at the intersection and of his inspection of the vehicles including the head lights and parking lights of the vehicles and the damage to the vehicles.

106. The plaintiff challenges reliance on Mr McDonald’s evidence, particularly with respect to his physical observations of the scene. I accept that his physical observations of the scene some 7 weeks after the accident where he said there were no physical signs of such an accident such as marks or debris) do not have any probative value as to whether or not an accident occurred on the night alleged, let alone the circumstances of that accident. However, his evidence with respect to the lighting in the area, the condition of the vehicles and the headlights in the photographs he took were relevant to Mr Urquhart’s opinion.

107. The first report of Mr Urquhart considered the evidence of damage to Wazen’s vehicle as documented by Mr McDonald. He also noted that the filament of the front offside low beam head light lamp was straight and intact. There was no deflection or deformity of the filament or the mounts.

108. In May 2018, Mr Urquhart undertook a site inspection. Relevantly, he observed that the overhead streetlights at the intersection provided some ambient lighting of the intersection. He noted that there was little other ambient lighting in the area and vehicles moving along both roads with headlights operating could clearly be seen for some distance.

109. Mr Urquhart noted the inconsistencies between the respective versions given by the plaintiff and Wazen as to how the accident happened, including their directions of travel, on the impact configuration based upon all of the evidence. He observed that, to achieve the known impact configuration based upon the physical evidence, one of the versions of events of either the plaintiff or Wazen was incorrect.

110. For the purposes of his opinion, Mr Urquhart adopted the version provided by Wazen, involving an approach of his vehicle from the west and heading generally in an easterly direction. He considered the claim by Wazen that vehicles parked on Northam Avenue obstructed his vision of traffic travelling on that street. Assuming this to be the case, Mr Urquhart opined that it placed Wazen’s vehicle, at impact, approximately 4.3m beyond the give way line.

111. Mr Urquhart thereafter considered the visibility issues for the respective vehicles. He concluded that, even if it was raining or that there were vehicles parked on Northam Avenue, the approach of the plaintiff’s vehicle’s headlight or headlights should have been detectable to Wazen for a considerable distance.

112. For the plaintiff’s approach to the intersection, Mr Urquhart noted that there were a number of potential lighting sources at night which would have illuminated Wazen’s vehicle on its approach to the intersection. Firstly, the intersection was illuminated by overhead street lights. Secondly, if the evidence of the plaintiff is to be accepted, the headlights on the first defendant’s vehicle were operating. Thirdly, there was reportedly a vehicle facing west on Chelmsford Avenue. The headlights of this vehicle would have illuminated the first defendant’s vehicle.

104. Finally, as the plaintiff moved closer to the intersection, Mr Urquhart opined that Wazen’s vehicle would have been illuminated by the headlights of the plaintiff’s vehicle. That is, Mr Urquart opined that all of these lighting sources would have illuminated the first defendant’s vehicle, making its presence apparent to the plaintiff.

105. Accordingly, Mr Urquhart concluded the first defendant’s vehicle should have been detectable to the plaintiff for a considerable distance, he opined to be in excess of 60m.

106. In respect to the damage to the respective vehicles, Mr Urquhart concluded that the plaintiff’s vehicle was likely to be travelling at a speed of between 30‑40km/h at impact, and probably towards the lower end of that range. He further concluded that at impact, the first defendant’s vehicle was stationary at the time of impact.

107. Mr Urquhart stated:

‘Ultimately it is the author’s opinion that at impact the Insured’s (Wazen’s) Audi was stopped, and it is likely that the Claimant’s (plaintiff’s) BMW was travelling at a speed between 30 and 40kph, and probably towards the lower end of that range. This is inconsistent with the Claimant’s (plaintiff’s) evidence.’

117. In respect to the headlights, following an examination of the photographs of the filament to the headlight, Mr Urquhart concluded:

‘Based on this, and the author’s experience, the overwhelming physical evidence is that the low beam headlights filament was not burning [i.e. on] at the time of the collision. Therefore, there is clear physical evidence which indicates that the headlights on the Insured’s (first defendant’s) Audi was not operating at the time of the collision. This is not compatible with the Claimant’s (plaintiff’s) evidence.’

118. Mr Urquhart therefore concluded:

‘Ultimately, it is the author’s opinion that the physical evidence is incompatible with the account of the Claimant. That is, the Claimant’s vehicle was travelling at a speed of between 40 and 60kph (in a 50kph speed zone) and collided into the stationary Audi driven by the insured. It appears that the vehicles did collide, but at a lower speed than suggested. Further, the headlights on the insured’s Audi were not on at the time of impact.’

119. Mr Urquhart provided a supplementary report which served to reinforce the opinions contained in his primary report that the physical evidence was inconsistent with the plaintiff’s claim.

120. Mr Urquhart was not cross‑examined on his opinions. I accept them as further evidence which persuades me that the plaintiff has not discharged his onus to establish how the accident occurred on the night.

CONCLUSIONS AS TO LIABILITY

121. I will set out now my reasons, in addition to the matters above, for determining that the plaintiff has failed to discharge his onus of proof. I reiterate that the NRMA does not need to prove how the accident happened. Nor do I need to make positive findings about that. What I need to consider is whether, having regard to all of the evidence I have had placed before me, the plaintiff has satisfied me that the accident took place in the manner pleaded and in a way which involved a breach of duty of care by Wazen.

122. I note that each of the plaintiff and Wazen gave evidence as to the purpose of their journey, and their direction of travel, at the time of the accident. They maintained this evidence. It is not something about which either could be mistaken.

123. The plaintiff claims that he was travelling south on Northam Avenue from Bankstown, towards Condell Park. The first defendant says he was driving east on Chelmsford Avenue from his home towards Chapel Road. NRMA included Figure 5 from Mr Urquhart’s report in its submissions. I have included it in this Judgment as it is telling in respect to the question of whether the plaintiff has discharged his onus. The original plan has been further annotated with street names, compass orientation and relevant locations. The first defendant’s vehicle is indicated in red and the plaintiff’s vehicle is indicated in blue.

124. There is no issue on the evidence that the front left corner of the plaintiff’s vehicle collided with the front right corner of Wazen’s vehicle in the impact configuration diagrammatically represented in Figure 5. That is the case on either version of their direction of travel at the time of the accident. I accept, however, that the collision could not have occurred in the intersection in the manner described by the plaintiff and the first defendant given the impact configuration and damage to the respective vehicles. Their versions are simply inconsistent in terms of their direction of travel prior to the collision.

125. I accept the NRMA’s submission that this fact alone is fatal to the plaintiff’s claim. In addition, I accept the submissions that a consideration of all of the evidence, including my assessment of the credibility and reliability of the witnesses which I have set out above, leads to a finding that the plaintiff has not discharged his burden on balance of probabilities.

126. I have considered the submissions of the parties and accept the submissions of the NRMA in [167]‑[177] of its submissions. I do not accept the plaintiff’s version. It is riddled with inconsistencies. I do not accept his evidence as to the injuries he says he suffered as a result of the accident.

127. I am therefore not satisfied that the plaintiff has discharged his evidentiary onus in respect to the factual matters upon which his claim in negligence is premised including:

1. The fact of a collision occurring at the intersection of Northam Avenue and Chelmsford Avenue on 1 May 2015.

2. The first defendant entered the intersection, contrary to a give way sign, striking the plaintiff’s vehicle.

3. That the accident was caused by the negligence of the first defendant in failing to give way to the plaintiff’s vehicle in the intersection.

128. Accordingly, there will be a verdict for the first and second defendants.

QUANTUM/DAMAGES

129. The plaintiff made a claim for significant past and future economic loss, past and future treatment expenses and domestic assistance. There is no claim for non-economic loss.

130. I accept that it is the general practice for the Court to determine all issues in question. This extends to the assessment of damages notwithstanding that the Court formed the view that the case on liability fails: Nevin v B & R Enclosures [2004] NSWCA 339 at [74]‑[75]. The purpose of this practice is to avoid costs of a further hearing in the event that the decision on liability is overturned.

131. There are, however, exceptions to this general rule. In Gulic v Boral Transport Ltd [2016] NSWCA 269, Macfarlan JA said at [8]:

“There may of course be good reasons for not dealing contingently with the issues that the judge does not consider decisive. One reason might be that the judge considers that because the outcome is so clear or there is so little at stake that there is no reasonable prospect of an appeal. Alternatively, the judge might consider that the expenditure of judicial time and effort required to determine other issues is not justified when balanced against the likely costs of a retrial and the likelihood of a retrial being necessary. Another reason might be that determination of an issue whose resolution is considered not to be decisive might require assumptions as to a party’s credit diametrically opposed to the judge’s findings. It might be difficult to give effect to this assumption.”

(Emphasis added)

132. In this matter, as is evident from my findings above, I find the plaintiff to be a witness of no credit. He was cross‑examined extensively not only as to issues going to liability, but also as to issues going to his claimed economic loss. I have made findings as to his credit which were made having regard to the whole of his cross examination, including with respect to his alleged economic loss, past and future treatment and the claim for domestic assistance. I do not accept any of his evidence as evidence that the court could rely on.

133. The claims for each of the heads of damage are contested and would require significant additional analysis and findings to reach a conclusion and determine that contest.

134. I note that there was extensive documentary evidence and an expert report on economic loss served by the NRMA. The expert report of Vincents Accountants was not challenged and the expert was not cross‑examined. The expert had considered the claims made by the plaintiff with respect to past economic loss. He reviewed the available material with respect to the plaintiff’s businesses and his personal affairs as produced by the plaintiff or on subpoena. The expert’s opinion was that, based on that material, the plaintiff’s allegations of economic loss as a result of the accident were “untenable and should be disregarded”. If that report was accepted (and there is no reason why it should not be) it would follow that, even if one accepts the plaintiff’s allegations that he suffered injury as a result of the accident, then there would be no economic loss (past or future) arising from those injuries.

135. As I have not accepted any of the plaintiff’s evidence, the assessment of any past or future domestic assistance claim would mean I would have to make assumptions, for example about what the plaintiff did around the house before the accident and what he is able to do around the house after the accident, completely contrary to my rejection of his evidence.

136. As I do not accept the plaintiff’s evidence, it seems to me that this is one of those cases which fall within the exception referred to above. It would be difficult to undertake the task of an analysis of any loss. That is because, as I have said and is obvious, I would need to assume that the plaintiff did suffer some physical injuries as a result of the accident which caused him some disabilities and loss. I would then have to fully analyse the evidence going to the quantum of that loss, an exercise which, as I have said, is not insignificant.

137. For those reasons, I do not propose to undertake the task as it seems to me to be a completely hollow exercise.

ORDERS

138. I make orders as follows:

1. Verdict and Judgment for the first and second defendants.

2. The plaintiff to pay the second defendant’s costs of the proceedings.

3. If any party seeks a different order with respect to costs, there is liberty to apply on three days’ notice.

4. The exhibits may be returned after 28 days.

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Amendments

07 September 2021 - Amendments made to correct typographical and grammatical errors. A Schedule of those amendments has been provided to the parties.

Decision last updated: 07 September 2021