KANAAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES; NSW INSURANCE MINISTERIAL CORPORATION v SINNERBRINK SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL COLE JA, GILES AJA and Simos AJA 17 September 1996 [1996] NSWCA 289 COMPETING accounts of cause of motor vehicle accident — unsuccessful challenge to trial judge's finding on credit. Cole JA. On 12 May 1987 a collision occurred at the intersection of King Georges Road and Lakemba Street, Wiley Park. The driver of the vehicle travelling north along King Georges Road was a Mrs Sinnerbrink. The driver of the vehicle travelling east along Lakemba Street was a Mr Kanaan. The collision occurred when the vehicle being driven by Mrs Sinnerbrink collided with the drivers side door of Mr Kanaan's vehicle. Mrs Sinnerbrink's vehicle had crossed the southern two lanes of Lakemba Road, and the next lane travelling north to the point of collision which was in the lane adjacent to the northern boundary of Lakemba Street, Each of the drivers contended that when they entered the intersection the light which they were facing was green. It is obvious that both could not be correct. The case of Mrs Sinnerbrink was that she was travelling north at about 60 kilometres per hour, that she had a green light in her favour, and that she entered the intersection. She gave evidence that there were other vehicles which were travelling in a similar direction. The accident occurred in the morning peak hour, and undoubtedly that would have been so. The case of Mr Kanaan was that he was travelling to work in an easterly direction, that he came to the lights in Lakemba Street at the crossing with King Georges Road and that he stopped because the lights were red. He commenced to go into the intersection only after they changed to green in his favour. At the trial Judge McDevitt found that the collision was due to the negligence of Mr Kanaan. There was no independent evidence concerning the accident, and on liability, apart from police evidence, there is only the evidence of the two drivers. As his Honour said, the question of assessment of liability was thus not an easy one. Put shortly, the opposing contentions were on behalf of Mr Kanaan that Mrs Sinnerbrink had, to use a slang expression, run a red light. The opposing contention on Mrs Sinnerbrink's behalf was, to use a similar expression, that Mr Kanaan had jumped the lights when entering the intersection. The learned trial Judge found that it was more likely that the account given by Mrs Sinnerbrink was correct. In so doing, his Honour contemplated the probabilities. There was evidence that there was a vehicle in the lane adjacent to Mr Kanaan. There was also evidence, although perhaps not of great clarity, that there were vehiclestravelling in a northerly direction in King Georges Road in the same direction as Mrs Sinnerbrink. 2 UNREPORTED JUDGMENTS His Honour contemplated that if the accident happened as Mr Kanaan had suggested, namely that Mrs Sinnerbrink had run a red light, the probability was that there would have been more than one accident, because other vehicles travelling as she was would have collided with vehicles crossing either in an easterly direction or in a westerly direction in Lakemba Street. Thus his Honour inclined to the view that the probabilities favoured the account given by Mrs Sinnerbrink. It has been suggested that that consideration of probabilities should be regarded as speculation, and that such speculation was fallacious because it disregarded other possibilities. I do not think that is so. In my opinion it was permissible for the trial Judge, faced with the paucity of evidence that he had, to contemplate the likely circumstances of traffic movements at the morning peak hour at a major intersection such as this. However, apart from that there was a second aspect which persuaded his Honour to accept the evidence of Mrs Sinnerbrink. That was that he found Mr Kanaan not to be a person on whose evidence his Honour could rely. There was a challenge to the credit of each of Mrs Sinnerbrink and Mr Kanaan, and his Honour did not in terms deal with the challenge to Mrs Sinnerbrink's credit. However, he did deal quite extensively with the challenge to the credit of Mr Kanaan. Mr Kanaan gave evidence that he did not lodge tax returns, that he worked for a person whom he knew only as Paul, that he did not know that person's residence, or telephone number, and that he met him only at work sites where he was paid $100 a day cash for manual labour. That evidence was related to Mr Kanaan's claim for economic loss. It was disproved to his Honour's satisfaction because, in major part, of the evidence of Mr Kanaan's son who gave evidence not only that the person known to his father as Paul was in fact a Mr Ahmed Kalil, but that he had his telephone number, that Mr Kalil was unwilling to give evidence in court, but in particular that he had seen Mr Kalil at his father's house on about 20 occasions. With that, his Honour coupled his observation of Mr Kanaan in the witness box, but in particular he relied on the matters to which I have referred as indicating an absence of credit which would not incline the Court to accept the evidence of Mr Kanaan. It has been contended on this appeal that his Honour was in error to let his finding of credit regarding Mr Kanaan, in relation to economic loss, to flow over into his rejection of Mr Kanaan's evidence concerning liability. In my opinion, that is not an error. Credit is not put into segments. It is open for a trial Judge to accept that a person is not to be believed on some aspects, but is to be accepted on others. It is equally open for a trial Judge to indicate that because he does not accept him in significant matters, he is not disposed to accept him on other aspects of his evidence. It is clear that that is what has happened on this occasion. In reality the material placed before the trial Judge depended upon accepting either the credit of Mrs Sinnerbrink or Mr Kanaan. Once Mr Kanaan's credit was destroyed, thenit was open to his Honour to accept the account of the accident given by Mrs Sinnerbrink, and that he did. In my opinion, no basis has been shown for a successful challenge to either his Honour's assessment of credit of Mr Kanaan or his Honour's assessment of preference for the account of the accident given by Mrs Sinnerbrink. Where as here the findings of the trial court depend to a significant extent upon the findings WANAAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES; NSW INSURANCE MINISTERIAL CORPORATION v SINNERBRINK (Simos AJA) of the trial Judge on credit, the task of an appellant to upset that finding is a difficult one in accordance with principles enunciated in both Abalos v Australian Postal Commission| and Devries v Australian Railways Commission2. It follows in my opinion that no error has been shown in relation to his Honour's findings in respect of liability, and accordingly the appeal of Mr Kanaan should be dismissed with costs. In relation to the appeal by the New South Wales Insurance Ministerial Corporation against the Judgment in favour of Mrs Sinnerbrink, in addition to the challenge on liability, there has been a challenge to his Honour's finding of an award of $35,000 for general damages. The trial Judge accepted the views of Dr Perrett. Dr Perrett's evidence was that whilst Mrs Sinnerbrink remains fit for clerical duties, she continues to suffer both soft tissue injury in the form of neck pain and headaches, and his view was that she would be troubled by those symptoms indefinitely. His Honour accepted the view of Dr Perrett that those disabilities flowed from a continued combination of cervical ligamentous strain with aggravation of pre-existing degenerative changes in her neck. Mrs Sinnerbrink was a lady of 55 years of age at the time of his Honour's assessment, and had a life expectancy of approximately 27 years. In my opinion, whilst the figure of $35,000 might be regarded as at the top end of the available range for the injuries found, I do not think that it is appealably beyond the permissible range. In those circumstances I propose that in the New South Wales Ministerial Insurance Corporation against Sinnerbrink the appeal also be dismissed with costs. Giles AJA. I agree. Simos AJA. I also agree. Orders accordingly. Counsel for the appellant (40593/95): A J Lidden Counsel for the appellant (40674/95): J P Guihot Solicitors for the appellant (40593/95): John D Hancock Solicitors for the appellant (40674/95): R J Walters Counsel for the respondent (40593/95): M A Elkaim Counsel for the respondent (40674/95): C T Twomey Solicitors for the respondent (40593/95): R J Walters Solicitors for the respondent (40674/95): Boyd House and Partners 1. (1990) 171 CLR 167. 2. (1993) 177 CLR 472.