Mouzakzak v The Nominal Defendant [2020] NSWDC 421

District Court New South Wales

Medium Neutral Citation: Mouzakzak v The Nominal Defendant [2020] NSWDC 421 Hearing dates: 27-28 July 2020 Date of orders: 28 July 2020 Decision date: 28 July 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 22 Catchwords: PRACTICE AND PROCEDURE – claim for personal injury arising from motor vehicle accident – plaintiff was passenger in vehicle at time of accident – driver of vehicle called as a witness for the plaintiff – application by plaintiff to strike out some evidence of the driver – witness cross-examined as to whether she deliberately drove to damage vehicle – absence of pleading of fraud – whether prejudice to the plaintiff Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.3 Cases Cited: Nguyen v Tran [2018] NSWCA 215 Category: Procedural and other rulings Parties: Ms S Mouzakzak The Nominal Defendant Representation: Counsel: Mr H Marshall SC and Mr J Tryon (Plaintiff) Mr K Rewell SC (Defendant)

Solicitors: Prominent Lawyers (Plaintiff) Hall & Wilcox (Defendant) File Number(s): 2018/231550 Publication restriction: Nil

Judgment

Background 1. The case before me is at day 2 of its hearing. It concerns a claim for damages for personal injury as a result of a motor vehicle accident in 2016. The plaintiff was a front seat passenger in a vehicle that was being driven by the second defendant along Henry Lawson Drive in a southward direction towards Milperra. The plaintiff alleges that the car in which she was a passenger, a Mercedes Benz, was first struck by a car travelling in a northbound direction which had veered across onto the wrong side of the road. She then alleged that the driver of the Mercedes Benz, in the process of responding to the other oncoming vehicle, steered the car towards the left and caused it to depart the roadway and strike a tree. It was the impact of the car's collision with the tree which caused her to suffer substantial injuries. 2. Following the accident, the driver of the other vehicle was not able to be identified. This caused the plaintiff to commence this proceeding against the Nominal Defendant, although she later joined the driver of the vehicle in which she was travelling as the second defendant. The claim against the second defendant has however settled. The second defendant, Ms Khaled, is now a witness called for the plaintiff. 3. The proceedings have reached a stage where the plaintiff has given her evidence and the second defendant is under cross-examination. 4. As I understand, there is no issue in dispute that the Mercedes Benz, driven by Ms Khaled, struck the tree. What is hotly in issue was whether the Mercedes Benz struck the tree following an earlier collision with an unidentified vehicle. 5. By its Defence, the Nominal Defendant expressly denied that there was such an unidentified vehicle. This, I think, effectively put the plaintiff on notice that, on the Nominal Defendant's view, the collision with the tree occurred independently of the involvement of a third party. The Nominal Defendant also denied that any negligence of any unidentified driver caused the injuries to the plaintiff. 6. I agree with the submission of Senior Counsel for the Nominal Defendant that, logically, there were only finite possibilities as to how the Mercedes Benz collided with the tree. Either Ms Khaled drove it negligently into the tree, or that she did so deliberately. It was advertent, or inadvertent. 7. Senior Counsel for the Nominal Defendant wished to explore these possibilities with Ms Khaled and certain answers were given. He questioned Ms Khaled whether the collision with the tree occurred negligently, or, alternatively, it occurred deliberately, albeit that she misjudged the speed at which she was travelling. I note that the form of the questioning was carefully crafted. No positive contention was actually put to Ms Khaled. 8. This questioning occurred in a context where evidence has been led that Ms Khaled had previously been involved in motor vehicle accidents and, so the Nominal Defendant will be expected to later argue, had previously acted in a way to profit herself through her involvement in motor vehicle accident claims. 9. Senior Counsel for the Nominal Defendant made it abundantly plain that there was no suggestion that the plaintiff was complicit in any design by Ms Khaled to deliberately steer the car in the direction of the tree.