Davies v Harris HC Wellington CIV 2010-435-57

[2010] NZHC 1782

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-435-57

BETWEEN  DOUGLAS WARREN DAVIES Appellant

ANDLEE ANTHONY HARRIS Respondent

Hearing:         6 October 2010

Counsel:         P V Paino for Appellant

J K W Blathwayt and J Elliott for Respondent

Judgment:      7 October 2010

JUDGMENT OF RONALD YOUNG J

Introduction

[1]      In   November 2006   vehicles   driven   by   Mr Davies,   the   appellant   and Mr Harris,  the  respondent  collided  in  a  street  in  Masterton.    The  collision  was relatively minor, somewhat less than $2,000 damage was done to the vehicles.  This minor collision has spurred significant litigation.

[2]      Mr Harris was charged with dangerous driving arising from the incident but was found not guilty.  Mr Harris then sued Mr Davies in the Disputes Tribunal for causing the  accident.   Mr Harris  won.   Mr Davies appealed.   The Judge in the District Court then decided the case should be heard in the District Court.   The respondent filed a statement of claim in the District Court.  It claimed damage to the vehicle  caused  either  by  negligence  or  by a  deliberate  battery or  assault.    The respondent claimed the costs of repairs of $1,900 together with general damages for

mental suffering and distress and exemplary damages.

DOUGLAS WARREN DAVIES V LEE ANTHONY HARRIS HC WN CIV 2010-435-57  7 October 2010

[3]      At the hearing the case proceeded as a claim in an action for trespass to goods.    The  Judge  found  Mr Davies  had  deliberately  driven  his  vehicle  into Mr Harris’.   But he found that Mr Harris could not prove any loss relating to the vehicle.   He concluded, however, that this was a case for general damages and exemplary damages and awarded $500 and $1,500 respectively.

[4]      In  this  appeal  the  appellant  says  the  Judge  wrongly rejected  one  of  the appellant’s witnesses, made credibility assessments of the appellant which were not open to him and as a result reached an erroneous conclusion on the facts.  Thus no damages awards should have been made.

[5]      In the alternative the appellant says that even on the facts as found by the

District Court Judge an award of exemplary damages should not have been made.

Facts

[6]      The litigants, Mr Harris and Mr Davies, apparently have a long history of animosity.    Unsurprisingly  they  have  a  completely  different  view  as  to  what happened  that  day  in  November 2006  in  Masterton.    A  description  of  the  two versions of events is set out in the District Court Judge’s decision in this way:

[16]      Going back to this particular day.  Mr Harris essentially says that he noticed Mr Davies driving directly ahead of him, north on Chapel Street.  He indicated that he was concerned about that because of previous events.  He said (and I summarise here and use my own words), that Mr Davies pulled his vehicle to the left and then as Mr Harris was passing, pulled out to the right and deliberately drove into Mr Harris’ passing vehicle.  The bull bars struck his vehicle on the left-hand side at the joint between the left-front mudguard and the left passenger door or thereabouts, and pushed him across the road, almost into the other lane.  He said that the vehicles came to a stop; that the bull bar was locked in his vehicle and he had some difficulty in extricating it, but he managed to get loose and took off.

[17]      I should mention also, that he had a passenger in his car, who was his daughter who did not, obviously, give evidence.  She was sitting in the left-front passenger seat, that is, the place more or less where the vehicles contacted each other.

[18]      Mr Davies gave a fairly diametrically opposed version.  His version was  that  he  had  first  seen  Mr Harris’  vehicle  as  he  was  coming  from Taranaki Street across into Short Street, which leads onto High Street and

Chapel Street which is sort of an extension of High Street.  Both of them are part of State Highway 2 coming into Masterton.

[19]      He  said that  Mr Harris  was  coming out  of  Harley Street,  which would have been on Mr Davies left, and was turning right into Short Street, coming towards him, driving the Nissan Terrano.   He said that Mr Harris stopped at the corner of Short Street and South Street and Mr Davies drove through that intersection onto Short Street so that he would not follow.  He said that as he went past something was thrown at the door of his vehicle and he later pointed to a mark, photographed on the side door of his vehicle.

[20]      He said that he laughed at Mr Harris, continued driving down Short Street towards High Street, and looked into his rear vision mirror and saw Mr Harris get out of his vehicle to pick up a rock off the road and heard him yell a threat or something of that sort at him and do a u-turn and start following him, five or six vehicles behind.

[21]      He said he was headed north and intended going to the police station which, of course, is not on Chapel Street, but rather, more up Dixon Street. Be that as it may, he gave evidence of a collision at more or less the same point that Mr Harris, eventually, said it was at.

[22]      Mr Harris did not tie himself to exactly outside St Patrick’s School. I do not think there is anything in the exact point on Chapel Street where it happened.   But Mr Davies said that what happened is, effectively, he was driving up there, heading to the police station and Mr Harris overtook him and pulled in front of him, and thus, caused a collision by pulling straight in front of him, and his vehicle struck Mr Harris’; the collision being caused by the  deliberate  actions  of Mr Harris.    He  agreed  that  the  damage,  which Mr Harris said was caused in the collision to his vehicle, was indeed caused in the collision.

[23]      So, there were two diametrically opposed versions of who caused this collision.   According to Mr Harris, Mr Davies deliberately caused it. According to Mr Davies, Mr Harris deliberately caused it.

[7]      The Judge concluded that it was more likely than not that Mr Harris’ version was the correct and true version.   Firstly, he analysed Mr Davies’ evidence and considered that his description of the background leading to the collision and the collision was implausible.  He rejected the evidence (previously taken by agreement between the parties) of a detective who had later examined the vehicles as being “of no real assistance”.  He thus gave “no weight to his observations or opinion”.  He gave reasons why he rejected his evidence.

[8]      Having concluded that Mr Davies had deliberately driven into Mr Harris the Judge considered the claim for various heads of damages.   Mr Harris could not establish his damages claim arising directly from the collision.   His vehicle had subsequently been sold with the damage unrepaired.  No evidence was given as to

diminution in value as a result of the damage.  The Judge therefore made no award for any direct loss.

[9]      As to general damages evidence was given by a medical practitioner as to Mr Harris’ stress and anxiety.  The Judge was satisfied that stress and anxiety had been caused to Mr Harris as a result of the trespass to goods but considered it was only minor and awarded $500.

[10]     As to exemplary damages the Judge concluded that because Mr Davies had deliberately   driven   into   Mr Harris’   vehicle   then   exemplary   damages   were appropriate and awarded $1,500.

[11]     To return to the grounds of appeal.  Two grounds, the credibility ground and the improper rejection of the Detective’s evidence go to the essence of the Judge’s decision.  I therefore consider them first.

Credibility

[12]     The  first  ground  of  appeal  relating  to  the  Judge’s  credibility  findings challenges his conclusion that the appellant’s evidence as to how the confrontation occurred was implausible.   The appellant submitted that his version was not implausible.  Further, he said the Judge had failed to take into account that Mr Harris could not remember what street he was in prior to the confrontation whereas he had a clear recollection.   Counsel suggested the Judge should have been suspicious of Mr Harris’ memory failure.

[13]     The second attack on the Judge’s credibility findings revolves around the Judge’s observations that he considered that Mr Harris was afraid of Mr Davies. Counsel submitted that this was “crucial in the assessment of the issue of credibility” and therefore crucial as to who was telling the truth in relation to the motor vehicle accident.

[14]     Counsel submits there was nothing in the evidence that would provide a foundation for this finding of fear.  It was no more than an impression which would not have formed part of the Judge’s assessment.

[15]     The appellant submitted that at the commencement of the hearing the Judge told the parties he did not want them to traverse old disputes.  However it was wrong to prevent the parties giving evidence about the history of prior incidents if the Judge was to rely upon an impression of who was scared of whom.  The appellant stresses that given the Judge found that each of the parties was “capable of deliberately driving his vehicle into the vehicle of the other” and that each of them had a motive for doing so, the error by the Judge was fundamental to the result of the hearing.

[16]     I reject this ground of appeal.  The Judge was entitled to make the credibility findings that he did and he did so based on rational grounds.  Grounds on which he rejected the appellant’s evidence are set out at [25] to [29] of the judgment as follows:

[25]      First,  I  consider  that  Mr Davies’  story  about  the  incident  at  the Taranaki/Short Street area is implausible.  Mr Harris denied it completely.  I think it is most implausible that Mr Harris was able to stop his car, throw a rock,  still  be  seen  in  the  rear  vision  mirror  getting  out  of  his  car,  as Mr Davies was disappearing up Short Street a short distance, and to turn onto High Street, and then, was able to catch up to him, five or six cars between  them,  and  cause  the  collision  that  it  was  said  was  caused, particularly when Mr Davies was, according to him, trying to go to the police station, which of course, is not up Chapel Street anyway.

[26]      Secondly, I think it is implausible that Mr Harris would have pulled in front of the other vehicle’s bull bars so that the other vehicle would drive into his left-front passenger side, where his daughter was sitting, and where he did not have the protection of bull bars himself.

[27]      The  protection  of  bull  bars  in  this  collision  was  available  to Mr Davies,  not  to  Mr Harris,  and  indeed,  the  bull  bars  did  their  job. Mr Davies  car  was,  to  all  views,  undamaged,  whereas  Mr Harris’  was damaged.  I think it is very unlikely that he would have caused deliberately, an accident in that way, exposing his vehicle to coming off second best, and his passenger, who was his daughter, to the possibility of injury.

[28]      Thirdly, my impression from the witnesses, and in particular from Mr Harris, is that he is genuinely afraid of Mr Davies.  I do not doubt that Mr Harris has a very chequered past and can be an aggressive man, and has been in the past, but, I gain the clear impression in this case, that at this stage in his life he is more afraid of Mr Davies than the reverse.  That is a matter

of impression and demeanour, I realise, but that is the impression I have obtained.

[29]     For all those reasons, I accept the evidence of Mr Harris as to what happened, and reject the evidence of Mr Davies.

[17]     The Judge was entitled to reach the conclusion that the appellant’s version of events was implausible.   Given the description of the appellant’s evidence by the Judge  his  conclusion  was  hardly  surprising.     Further,  given  Mr Harris  was recounting  events  three  years  previously  it  is  hardly  surprising  he  could  not remember what streets he had been on before the collision.  This was hardly pivotal to a credibility assessment.

[18]     As to the third ground on which the Judge based his credibility assessment I accept it is not entirely clear what the Judge was referring to at [28] of his Judgment. It would have been relevant to credibility if the Judge had concluded that on the day of the collision Mr Harris was scared of Mr Davies.  If established that would have made it less likely Mr Harris would have deliberately rammed Mr Davies’ vehicle. However, the Judge had a clear impression that at the hearing of the civil case that Mr Harris was more afraid of Mr Davies “than the reverse”.   Who was afraid of whom at the hearing hardly seems relevant to an assessment of credibility.   For reasons I have given fear on the day of the collision could have been relevant.

[19]     The appellant submitted therefore than given this plank of credibility had been  undermined  the  Judge’s  overall  credibility  findings  should  be  set  aside. Counsel pointed out that at [29] the Judge said “for all those reasons ...” he accepted Mr Harris’  evidence  and  rejected  Mr Davies’.    This  means  all  three  credibility findings were necessary to support his conclusion.

[20]     The   Judge’s   conclusions   at   [25]–[27]   were   sufficient   to   justify   his conclusions as to credibility without his “third” reason.  At [25] the Judge illustrated why he rejected the appellant’s evidence.   Given there were only two versions of what happened that day and given his conclusion Mr Harris’ version was the “correct and true version” ([24]) the outcome was inevitable.  The first reason for rejecting Mr Davies’ evidence stood on its own.  The issue of Mr Harris’ fear was not pivotal in resolving credibility issues.  I therefore reject these grounds of appeal.

[21]     The    next    ground    of    appeal    relates    to    the    evidence    given    by Detective Donaldson.  That evidence was given before trial presumably because the witness could not give evidence at trial.   The essence of the evidence can be summarised in this way.  After the accident the Detective examined both vehicles. He concluded that because there was no scrape damage on Mr Harris’ vehicle that the vehicle had only stationary impact damage.  He concluded therefore the version of  events  given  by  Mr Davies  was  more  likely  to  be  true  than  that  given  by Mr Harris.

[22]     The appellant says that the  key point was what Mr Harris said in his brief of evidence:

The vehicles were locked together for about 30 seconds.  Mr Davies’ vehicle was almost at right angles to my vehicle in a T-bone type position.   He continued to drive forward and my vehicle was partially pushed on to the other side of the road into the path of an oncoming bus.  Mr Davies’ vehicle eventually stopped moving forward as he tried to push me into the path of the bus.  My brakes were locked on hard and I was trying to turn away so I could get free .... I managed to break away from Mr Davies’ vehicle and drove off down Treadwell Street in a northerly direction.

[23]     The appellant says that based on Detective Donaldson’s evidence and given his inspection of the respective vehicles the description of the accident given by Mr Harris could not have been accurate.

[24]     As to Detective Donaldson’s evidence the Judge said:

[8]       Some  evidence  was  given  for the  defendant  by a Mr Donaldson which was relevant to the issue of liability and causation.  I say, at the outset, that I have found Mr Donaldson’s evidence, which was taken prior to the hearing today, of no real assistance.  I give no weight to his observations or opinion.

[25]     The Judge of course was not obliged to accept the Detective’s evidence. Indeed at one stage during the course of his evidence the Detective accepted that all he was saying was simply common sense.  That is if two vehicles are moving and collide there is likely to be scrape damage.  The damage he observed on Mr Harris’

vehicle was not scrape damage and therefore he thought the version of Mr Davies was more likely than that of Mr Harris.

[26]     In assessing why he rejected Detective Donaldson’s evidence the Judge said:

[9]       First, I do not think that the level of his expertise or the level of his observations are sufficient to give me confidence that his conclusions are any better than those of any other ordinary observer of the damage to the vehicles.

[10]      Secondly, I do not have any confidence myself, in the correctness, or incorrectness for that matter, of the conclusion which he draws from that damage.

[27]     These observations were open to the Judge and indeed clearly correct.  The Detective was not really giving expert evidence, he was simply making a series of observations on the damage he had seen.  These were the kind of observations that would be open to anyone to make.  Expert evidence is defined in s 4 of the Evidence Act 2006 and “means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion”.  Thus there  may  be  real  doubt  whether  in  this  case  the  Detective  was  giving  expert evidence.   If not his evidence was inadmissible.   After all on one version of the events Mr Harris’ vehicle would not have been moving when Mr Davies collided with it.  In the passage quoted by the appellant in support of this appeal Mr Harris’ description is of Mr Davies vehicle moving and Mr Harris’ vehicle in the T-bone type position with his brakes locked on hard.   Mr Harris’ complaint was that his vehicle was effectively being pushed sideways by Mr Davies’ vehicle.   In those circumstances there may well be no scraping of paint.

[28]     The Judge’s conclusion was that it was dangerous to make assumptions from the observations of the damage because no doubt there are many possibilities as to how damage may have occurred in a motor vehicle accident.  The Judge was entitled to  reject  the  Detective’s  evidence  as  unhelpful.    No  error  of  law  or  fact  was committed when he did so.

[29]     The Judge therefore was entitled, given the evidence he had relating to the effect of the accident on the respondent, to make an order for general damages.

Exemplary damages

[30]     The Judge found as follows:

[47]     Here, in my view, this does merit punishment.  This is an action in disregard of the plaintiff’s rights.   A deliberate, as I have found, collision with his vehicle in an obvious attempt to upset and intimidate him.  In my view, it is the sort of case for which exemplary damages is made.  Even if awards are rare, this is one that fits the bill.

[31]     The appellant says that no award of exemplary damages should have been made because all that happened was that two motor vehicles came into contact with each other in a relatively minor scratching.  There was nothing said, no threats were issued and no assault or battery occurred.   In those circumstances the appellant submitted he was not subjectively reckless and the facts do not support an award of exemplary damages.

[32]     I reject that submission.  The Supreme Court in Couch v Attorney-General[1] at [178], [246] and [259] observed that in tort actions exemplary damages are to be confined to circumstances where the torts are committed intentionally or were subjectively reckless.   In this case the Judge found the tort was intentional.   The appellant had deliberately driven into the respondent thereby committing a trespass to goods.  In those circumstances an award of exemplary damages was in law open. The Judge made no error of law.

[1] Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149.

Solicitors:

Ronald Young J

P V Paino, Paino & Robinson, PO Box 40 955, Upper Hutt, email: [email protected]

J K W Blathwayt, WCM Legal, PO Box 49, Carterton, email:  marg[email protected]