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. The Application 1. Senior Counsel for the plaintiff moves the Court to strike out those answers to this questioning. 2. He contends that although the Defence indicated that the Nominal Defendant's position was that there was no other vehicle, the Defence stopped short of asserting that a possibility for how the Mercedes Benz struck the tree was that its driver deliberately drove the car in a way that might cause that result. He submits that by reason of this omission, the rules of pleading and particulars, in rules 14.14 and 15.3 of the Uniform Civil Procedure Rules 2005 (NSW) now precludes it from doing so. He submits that the plaintiff would be prejudiced now in allowing the Nominal Defendant to pursue this line of enquiry and eventually submit that the collision of the tree was the result of deliberate conduct by Ms Khaled. This would be to the prejudice of the plaintiff who settled her proceeding with Ms Khaled without notice that the Nominal Defendant might subsequently seek to argue that the collision with the tree was the result of deliberate human conduct. 3. It is true that the function and scope of the rules of pleadings and particulars goes beyond a requirement for a defendant in the Nominal Defendant's position to make factual assertions which may make the plaintiff's claim not maintainable. Rule 14.14, by its terms, for example speaks of raising matters which may take the plaintiff 'by surprise'. 4. Nevertheless, I am not dealing with conduct by the plaintiff, but conduct of a witness called for the plaintiff. It is, I think, realistic to acknowledge that the circumstances as to how and why the Mercedes Benz struck the tree are matters within the peculiar knowledge of the two occupants of the vehicle: Ms Khaled, the driver, and the plaintiff, the passenger. Plainly, the credibility of each of Ms Khaled and the plaintiff are of significance. It is not a case, and Senior Counsel for the plaintiff disclaimed any suggestion, that any dishonesty or fraud of Ms Khaled could be imputed to the plaintiff under the law of agency or anything else. 5. It appears to me that an arguable platform for testing the credibility of Ms Khaled has been established by reference to earlier questioning of the kind that I have referred to. 6. In my opinion, the scope of the Court rules is not such that a defendant in the position of the Nominal Defendant must, as a matter of pleading or particulars, assert matters that suggest that a witness who may be called by the plaintiff acted in a fraudulent way, where no such imputation is made against the plaintiff. It is, rather, a matter for evidence. 7. I was referred by Senior Counsel for the Nominal Defendant to the Court of Appeal's decision in Nguyen v Tran [2018] NSWCA 215. In that case, there were multiple claimants for damages who were passengers in a car. For one of the three of them, the defendant denied that the claimant was in the car. Implicitly, so it was suggested, the defendant was suggesting that a contention that the claimant was in the car must, in substance, amount to a contention of dishonesty (or fraud), but it was submitted that the decision of the Court of Appeal indicated that it was unnecessary for the defendant to expressly assert in its pleading that this was so. 8. In my view, the Court's decision was directed more towards the standard of proving a serious allegation than a point of pleading, but nevertheless, the decision assists the Nominal Defendant in a certain way. At paragraphs [57]-[59], the judgment of the learned President emphasised that the presence of the claimant in the car was an elemental factual controversy, about which the defendant bore no legal onus to establish or evidentiary onus. Given that the defendant pleaded that the claimant was not present in the car, there were various means to make out that denial. They included questioning in cross-examination. 9. To my mind, the decision does provide some assistance to the Nominal Defendant. If the Mercedes Benz was driven deliberately without the intermediation of an unidentified vehicle, it would plainly assist the Nominal Defendant to make out its existing denial in its pleading that any negligence of the unidentified driver did not cause the Mercedes Benz to collide with the tree and cause injury. 10. This seems to me to be a routine situation where the credibility a witness called by a party is being vigorously challenged. It is not usually to be supposed that the other party must telegraph to the party calling the witness the way in which the credibility of that witness is to be attacked. 11. I note that earlier parts of the cross-examination of this witness were no less challenging than the parts which Senior Counsel for the plaintiff seeks to have struck out. It was suggested, for example, that Ms Khaled had "made up" the involvement of an unidentified vehicle. Though that, I accept, is closer to the pleaded defence than the current questioning, it nevertheless amounts, in substance, to a positive contention that instead of the witness being merely mistaken about the presence of an unidentified vehicle, she was being dishonest in asserting that it was there. It was not suggested that the Nominal Defendant needed to positively assert in its Defence that not only was there no unidentified vehicle, but it was dishonest or fraudulent for the plaintiff to assert that there was. 12. Further, I am not persuaded of any prejudice even if there was some material omission in the pleading. The parties have allowed the case to run on the basis that the Mercedes Benz driven by Ms Khaled struck the tree. It was obvious that the circumstances in which it struck the tree would be in issue. That would include the relevant mental state of the driver. The plaintiff would reasonably have been on guard that the driver's mental state may be probed without the pleadings telling her so. Further, I agree with the submission for Senior Counsel for the Nominal Defendant that in deciding to settle the claim against the driver, the plaintiff took a forensic decision in the constructive knowledge that the mental state of the driver would remain for inquiry as she pursued her claim against the Nominal Defendant. 13. I therefore decline to strike out the evidence that has emerged to date as to Ms Khaled's state of mind as the Mercedes Benz veered off the road and in the direction of a tree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2020