New South Wales Court of Appeal CITATION : Tajiki v Mitchell [2003] NSWCA 207 HEARING DATE(S) : 4 June 2003 JUDGMENT DATE : 29 July 2003 JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Santow JA at 3 DECISION : 1. Appeal dismissed; 2. Appellant to pay respondent's costs of appeal CATCHWORDS : NEGLIGENCE - liability - judgment below on issue of negligence liability only - separate proceedings for damages for personal injury ? Breach of duty of care - driving on incorrect side of the road ? Credibility of witnesses - inconsistent findings concerning skid-marks and competing experts' opinions. - EVIDENCE - whether evidence properly admitted - assessment of credibility questioned - challenge to judicial findings of fact on basis of reasoning and lack of consideration of evidence LEGISLATION CITED : Motor Accidents Act 1988, Schedule 5 CASES CITED : Makita (Australia) Pty Limited v Sproules (2001] 52 NSWLR 705 PARTIES : Kazem TAJIKI (appellant) Jason George MITCHELL (respondent) FILE NUMBER(S) : CA 40486/02 COUNSEL : B Gross, QC/ D Williams (appellant) C Hoeban, QC (respondent) SOLICITORS : Barclay Benson (appellant) Stewart Cuddy & Mockler (respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 1467/01 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40486/02 DC 1467/01 MEAGHER JA HANDLEY JA SANTOW JA 29 JULY 2003 Kazem TAJIKI v Jason George MITCHELL CATCHWORDS NEGLIGENCE – liability – judgment below on issue of negligence liability only – separate proceedings for damages for personal injury - Breach of duty of care – driving on incorrect side of the road - Credibility of witnesses – inconsistent findings concerning skid-marks and competing experts' opinions. EVIDENCE - whether evidence properly admitted – assessment of credibility questioned – challenge to judicial findings of fact on basis of reasoning and lack of consideration of evidence. FACTS 1. The appellant and respondent were the drivers of two vehicles involved in a head-on collision at a country road near Gulgong. The accident occurred around 9.15 pm, the two cars being in Mr Tajiki's case, a 1985 brown Nissan Bluebird Sedan, and in Mr Mitchell's case a white 1989 Ford Capri. Mr Tajiki had been travelling south while Mr Mitchell had been travelling north. Each of the drivers claim that the other vehicle crossed over to the incorrect side of the roadway. 2. Both the appellant and the respondent presented expert witnesses who gave evidence in court and by way of reports, explaining how the other party was wrongly driving in their respective lane. 3. One of the passengers in the respondent's car signed a claim form in which she described the respondent's vehicle as being on the incorrect side of the road. Her evidence was that her solicitor had drawn the diagram. A District Court statement of claim subsequently issued on 6 March 2002 recited a history in accordance with that claim form. (It was filed by her solicitors on her behalf in respect of her own injuries sustained in the accident being the same firm of solicitors which completed the claim form, albeit a different solicitor in that firm.) 4. The appellant contended that the trial judge erred in dealing with the evidence of the respondent, and witnesses called on the respondent's behalf, by failing to take into account a number of relevant matters including matters said to go to their credibility. The remaining appeal grounds relied on what is said to be inconsistent findings concerning skid-marks and the competing experts' opinions with respect to those skid-marks. More generally the appellants challenged the trial judge's acceptance of the opinion of the respondent's expert, on the basis that he failed to furnish the trier of fact with criteria necessary to enable evaluation of the validity of that expert's conclusions. Held per Santow JA (with Meagher JA and Handley JA agreeing): 1. The Respondent's expert provided in evidence the criteria required to enable the evaluation of the expert's conclusions. No basis was presented on appeal to challenge the evidence under the principles as enunciated by Heydon JA in Makita (Australia) Pty Limited v Sproules (2001) 52 NSWLR 705 at 729. 2. The Respondent's expert Report was consistent with the physical evidence 3. It was open to the trial judge not to accept that part of the reasoning of the respondent's expert as led him to conclude that the extended skid-marks pre-dated the accident, and still accept his other reasons for concluding that the skid-marks observed at the date of the accident were not made by the respondent's vehicle. 4. It was open to the trial judge to accept the location of gouges on the road post-collision as determining the point of impact of collision between the two vehicles. 5. The trial judge accepted the evidence of the respondent's passenger that the history in the claim form was incorrect. The statement she subsequently gave to the police (in the presence of her solicitor), and confirmed by her in the lower court proceedings, was consistent with the evidence given by the respondent in chief, which the trial judge accepted. The omission of reference to the District Court statement of claim does not of itself establish appellable error, or counteract the advantage the trial judge had in observing her demeanour in the witness box. 6. Evidence of a witness's previous drug use does not preclude the trial judge from concluding that the witness was nevertheless credible. Similarly, history of prostitution need not mean that a witness should be discredited. The trial judge's conclusion was attended by no appellable error, being classically a matter of credibility in which the trial judge's advantage should be recognised. Orders 1. Appeal dismissed. 2. Appellant to pay respondent's costs of appeal. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40486/02 DC 1467/01 MEAGHER JA HANDLEY JA SANTOW JA 29 JULY 2003 Kazem TAJIKI v Jason George MITCHELL Judgment 1 MEAGHER JA: I agree with Santow JA. 2 HANDLEY JA: I agree with Santow JA. 3 SANTOW JA: INTRODUCTION This is an appeal by the plaintiff Mr Kazem Tajiki against a decision by Her Honour Judge Balla in the District Court of New South Wales. Following an eight day hearing, on the issue of negligence liability only in relation to a head-on car collision, the trial judge entered judgment for the defendant driver, Mr Jason Mitchell ("Mr Mitchell"). She also entered judgment in favour of Mr Mitchell against Mr Tajiki, in Mr Mitchell's separate proceedings for damages for the personal injury he suffered. 4 The central issue is whether the trial judge erred in concluding, as she did, that the appellant Mr Tajiki was in breach of his duty of care in driving on the incorrect side of the road. Both the appellant and the respondent claimed to have been on the correct side of the road and that the other was on the wrong side of the road. They could not both be right. 5 In broad terms, the appeal grounds contend that the trial judge erred in dealing with the evidence of the respondent, and witnesses called on the respondent's behalf, by failing to take into account a number of relevant matters including matters said to go to their credibility. The remaining appeal grounds rely on what is said to be inconsistent findings concerning skid-marks and the competing experts' opinions with respect to those skid-marks. More generally they concern whether the trial judge erred in accepting the opinion of the respondent's expert on the basis contended for by the appellant, namely that he failed to furnish the trier of fact with criteria necessary to enable evaluation of the validity of that expert's conclusions. THE BACKGROUND FACTS 6 The background facts are not in dispute, save as to certain crucial matters bearing upon whether, as found by the trial judge, the appellant was on the wrong side of the road at the time of the collision. 7 The collision occurred on 31 January 1999. 8 The appellant and respondent were the drivers of two vehicles involved in a head-on collision at a country road near Gulgong. The accident occurred around 9.15 pm, the two cars being in Mr Tajiki's case a 1985 brown Nissan Bluebird Sedan and in Mr Mitchell's case a white 1989 Ford Capri. Mr Tajiki had been travelling south while Mr Mitchell had been travelling north. Each of the drivers claim that the other vehicle crossed over to the incorrect side of the roadway. 9 It was common ground that the road in which the area of the collision occurred was generally level with one minor deviation. There was one lane available in each direction, separated by a combination of broken white lines and a solid white line. The roadway was between 7 and 7.1 metres wide with each lane being 3.1 metres wide. 10 Each of the drivers would have come around a bend and then approached each other along a relatively straight stretch of roadway. That stretch is 600 metres long. 11 It was common ground that at the time the two vehicles collided, they overlapped at the front on the driver's side by half a metre. 12 Mr Tajiki's vehicle contained Mr Tajiki as driver and Mr Rasdgar as the front seat passenger. Mr Mitchell's vehicle contained Mr Mitchell, and two passengers, Ms Honana in the front passenger seat and Ms Wortmann who sat in the back seat on the nearside part of the car. 13 Mr Tajiki drove his car from a property at Gulgong which he and Mr Rasdgar left some time after 9 pm, intending to proceed in a southerly direction towards Gulgong and from there to Mudgee and Orange. His vehicle was in good mechanical condition. The judgment (Red, 89) says, as to his lights: · Mr Tajiki gave evidence in Local Court proceedings in Mudgee in March 2000. ….. In those proceedings Mr Tajiki also agreed that he had forgotten to put on his headlights when he left the property. He now says that his headlights were definitely on. ….. 14 After travelling for about four to five minutes Mr Tajiki's evidence is that he noticed a vehicle in his lane coming in the opposite direction. He says he was then travelling at around 70 kph. Mr Tajiki's evidence is that he estimated that the other vehicle was travelling very fast at around 100 kph with its high beam on. He could not say whether all of the other vehicle was in his lane but said that both headlights were in his lane. Mr Tajiki's evidence was that he looked to his right to check that the white centre line was on his right to make sure that his vehicle was in the correct position, describing this as a habit. At this point the other vehicle was less than 200 metres away. 15 Mr Tajiki said that he tried to warn the other driver to correct his position by putting his high beam on but the other vehicle was travelling at a very high speed and was at this point less than a 100 metres away. Mr Tajiki said that he then tried to go to the left and tried to stop his car by braking but could not recall whether his vehicle did travel to the left. Mr Tajiki said that the other driver tried to correct but he could not control his vehicle. On cross-examination he explained that he observed the other vehicle starting to go back to its side of the road. As far as he could remember, one headlight of the other vehicle went over to the correct side of the road. Mr Tajiki's evidence was that he thought that the other driver must have been sleeping. All this took just a few seconds and the vehicles then collided head on. Mr Tajiki said that he did not recall anything further until he was in hospital. 16 In relation to Mr Tajiki's evidence, one fact of potential significance is that Mr Tajiki prior to coming to Australia had about 13 years of driving experience in Iran, where he drove on the right-hand side of the road, using a vehicle which had its steering wheel on the left-hand side of the vehicle. He had arrived in Australia on 25 November 1998, about two months before the accident, and had an international driving permit. His evidence was that his office was initially in the Brisbane/Rockhampton area and he drove vehicles from the time when he arrived in Australia, but using a rental car. Approximately one month after he arrived he purchased the Nissan, which had conventional right-hand drive steering. He was then based in Orange and his evidence was that he was driving daily, including driving to abattoirs all over New South Wales in the course of his work. 17 As to Mr Tajiki's capacity to recall the events, he was successfully cross-examined to suggest that because of his severe head injuries, and his own subsequent reports concerning his limited recollection of events, his version of events was based upon what he was told and not a true memory of what occurred. The trial judge records that cross-examination in the following terms (Red, 89) which was not disputed: "Mr Tajiki was cross examined in relation to earlier statements: · On 17 March 1999 Mr Tajiki was interviewed by the police. He told then he could recall leaving the property, driving for 5 to 10 minutes and then waking up in hospital. He then said that he had been told about the collision. · Mr Tajiki said that this statement had been true at the time but that his memory had gradually improved. Mr Tajiki then said that he had remembered that another car had been involved in the accident a few weeks later and believed that he had told the police; · Mr Tajiki returned to Iran shortly after 17 March 1999. He said that he first remembered something about the collision during the first year he was back in Iran. He then remembered that he had been on the correct side of the road while the other vehicle had been on the incorrect side of the road; · Mr Tajiki gave evidence in Local Court proceedings in Mudgee in March 2000. I am satisfied that the effect of his evidence in those proceedings was that he could not recall the accident and had been told about it. In those proceedings Mr Tajiki also agreed that he had forgotten to put on his headlights when he left the property. He now says that his headlights were definitely on. Mr Tajiki said that he had not had an interpreter when he gave his evidence and his memory has improved. · Mr Tajiki was asked whether he used the horn prior to impact. He said that it was possible but he could not remember. Mr Tajiki made a statement to an investigator on 23 November 2001. He acknowledged the assistance of an interpreter. He said "Before the accident I flashed my lights and blew my horn because it was not far before the accident that I realised he was coming to my side of the road. I flashed my lights and blew the horn when the other car was less than 100 metres in front of me … From the time I started flashing my lights and blowing my horn to the accident was very quick and only a few seconds". The plaintiff explained this discrepancy by referring to problems with his memory and the opinion of his psychologist." 18 Mr Tajiki's passenger, Mr Rasdgar, gave evidence that the vehicle driven by Mr Tajiki was travelling on the correct side of the roadway. However, just before the collision, he was reaching down to find something, apparently a cassette, and when looking up saw headlights, apparently on high beam, very close, which "blinded" him but which he said was on Mr Tajiki's correct side of the road. 19 Mr Rasdgar, as recorded by the trial judge (Red, 90), could not recall saying to Mr Mitchell, through an interpreter, in the following week, that he did not know what had happened. 20 Turning now to the evidence from those in Mr Mitchell's car, each of the occupants gave evidence, namely Mr Mitchell himself, Ms Honana and Ms Wortmann. That evidence was to the effect that their vehicle was on its correct side of the roadway and that the collision occurred when Mr Tajiki's brown Nissan was coming at them on his incorrect side of the roadway. This forced Mr Mitchell to deviate to the left so his vehicle was well over to the left (western) side of the roadway, with the nearside wheels at the edge of the available bitumen surface, when the head-on collision occurred. 21 The white Capri driven by Mr Mitchell did not leave any skid-marks, and no evidence was given by Mr Mitchell, Ms Honana or Ms Wortmann of any attempt by Mr Mitchell to apply the brakes of the Capri before the collision occurred. 22 As to the immediately preceding events before the accident, Mr Mitchell said that he left Sydney with the two passengers arriving at Mudgee at around 8.30 pm. After a short stop they continued on their way to Dubbo. He said that he felt very well and that his motor vehicle was in good mechanical condition. He had modified the vehicle by putting in lowered springs which lowered the profile of the whole vehicle. He believed that he was licensed but later found out that his licence had been cancelled for failure to pay a dog fine. 23 Mr Mitchell said that as he approached the scene of the accident he saw the lights of Mr Tajiki's vehicle coming towards his vehicle and said that he changed his lights to low beam but not his speed which he estimated at 100 kmh. 24 Mr Mitchell said that as Mr Tajiki's vehicle came closer, he realised that it was wholly within his (Mr Mitchell's) lane. From cross-examination he estimated that the vehicle was 20 to 30 metres away. He said that he had not seen the vehicle move into this position. First, he could not believe it and then he pulled as far as he could to his left but did not brake. When asked why he had not braked, he said that it had all happened too quickly. He did not pull off the roadway because he was familiar with the area and knew there was culvert and drain near the side of the road. 25 Mr Mitchell said that he thought that the vehicles would miss and said that the impact occurred when his vehicle was as far to the left as he could get. It was over the white fog line but still on the bitumen. 26 Mr Mitchell's evidence is that Mr Tajiki's vehicle did not deviate from its course. The driver, according to Mr Mitchell, did not brake or reduce speed, nor did he flick his lights or sound his horn. He could not recall hearing the sound of the impact. 27 Ms Honana's evidence is that they were travelling in the correct lane when she saw the headlights in front in their lane. At that time the other vehicle was not so far away. She said, "Why are the headlights in front of us", but she could not remember Mr Mitchell replying. Mr Mitchell said that he did not hear her say anything. Just before the impact and not long after she spoke, Mr Mitchell swerved to the left and the impact occurred. 28 The trial judge records that Ms Honana did sign a claim form in which she described Mr Mitchell's vehicle as being on the incorrect side of the road. Her evidence was that her solicitor had drawn the diagram. 29 The trial judge does not record that a District Court statement of claim subsequently issued on 6 March 2002 recited a history in accordance with that claim form. (It was filed by her solicitors on her behalf in respect of her own injuries sustained in the accident being the same firm of solicitors which completed the claim form, albeit a different solicitor in that firm.) The third party insurer of Mr Mitchell's vehicle admitted liability in those proceedings. However the significance of that fact is greatly diminished by the fact that Ms Honana was a passenger. The Industry Deed which covered the relevant motor accident legislation at the time, the Motor Accidents Act 1988, Schedule 5, "Sharing Agreement", clause 5, meant that the CTP insurers of both vehicles would share equally in respect of the cost of the claim of Ms Honana as a passenger irrespective as to fault of the drivers of the vehicle (see deemed sharing provision, clause 5.3). Moreover, there is nothing in the evidence given by Ms Honana which would suggest that she saw the statement of claim prior to it being issued or that she changed her version of events subsequent to giving her statement to the police and evidence at the lower court proceedings. 30 The appellant's grounds of appeal rely upon the omission of reference to the statement of claim as indicating that the trial judge erred in accepting her evidence without taking that matter into account, as also Ms Honana's past drug use (addiction to illegal hard drugs) which the appellant contends affected her credibility. 31 However, Ms Honana's evidence did not involve her retracting from the evidence that she gave in chief in respect of the accident and the circumstances leading up to it, as summarised by the trial judge at Red, 90-91. She agreed in cross-examination that she had signed the personal injuries claim form on 14 May 1999 having been in hospital for some time. At Black, 203-4 she agrees that the statutory declaration on the claim form was true. But there is nothing else in the cross-examination of Ms Honana or her other evidence which suggested that she adhered to the version given in that claim form and subsequently in the District Court Statement of Claim, as distinct from her evidence given in chief in the District Court in relation to proceedings between the appellant and the respondent. Importantly also, the evidence she gave at the trial was on all fours both with her statement to the police of 9 November 1999 (Blue, 252-5) and her actual evidence in the lower court proceedings on 31 March 2000. 32 In the present proceedings she explained in re-examination that the contents of the information in her claim form were completed by her then solicitor, Bruce Robertson, who drew the diagram contained therein. She claims that she told him that it was wrong but signed it because he said it was right because of the police evidence. Ms Honana did not keep Mr Robertson as her solicitor; Black, 206. 33 The trial judge accepted Ms Honana's evidence that the history in the claim form was incorrect. The statement she subsequently gave to the police (in the presence of her solicitor), and confirmed by her in the lower court proceedings, was consistent with the evidence given by the respondent in chief which the trial judge accepted. The omission of reference to the District Court statement of claim does not of itself establish appellable error, or counteract the advantage the trial judge had in observing her demeanour in the witness box. Nor do I consider that Ms Honana's past drug use precluded the trial judge from concluding as she did (Red 99R): "I also do not accept the submission made by counsel for Mr Tajiki that Mr Mitchell's evidence as to Ms Honana's past drug use … affected … credibility". 34 Whether ultimately the trial judge's conclusion about the appellant being on the wrong side of the road should be disturbed, turns rather in my opinion upon whether appellable error attends the trial judge's critical findings upon more objective evidence based upon the skid-marks and gouges on the road and upon the trial judge's acceptance of their interpretation by the respondent's expert. That acceptance was in preference to the conclusions reached by the appellant's expert. The appellant challenges the trial judge's admission into evidence of the report by the respondent's expert, contending that it failed to provide the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions; see Makita (Australia) Pty Limited v Sproules (2001] 52 NSWLR 705 at 729 per Heydon JA. I shall return to that attack after considering the two reports in more detail. 35 Turning now to the other witness from Mr Mitchell's vehicle, Ms Wortmann, her evidence was that she was seated directly behind Ms Honana but that she could see ahead. She agreed that the seat in front had a headrest. Mrs Wortmann said, as the trial judge records (Red, 91), that as they were driving on the correct side of the road she saw two headlights coming towards them. She saw that it was in their lane when it was 50 to 80 metres away. Mr Mitchell moved to the left without swerving so that the vehicle was half on and half off the roadway when the impact occurred. Ms Wortmann estimated that Mr Mitchell had been driving at 70-80 kmh but agreed that she did not hold a driver's licence. She said that she had been watching the speedometer because she had a bad back and kept telling him to slow down. Ms Wortmann said that she said to Mr Mitchell that there was a vehicle in their lane but that he had not answered. 36 Here, there is a similar attack on Ms Wortmann's credibility namely that the trial judge rejected the submission that her occupation as a prostitute affected her credibility. However, that was a conclusion attended by no appellable error, being classically a matter of credibility in which the trial judge's advantage should be recognised. 37 Turning now to the accident itself and what immediately followed in the way of investigation, I first note that the investigating police officers were: (a) Snr Constable Scott Hill, a local uniformed officer; (b) Sgt Chris Tillott of the Western Crash Investigation Unit; (c) Det Snr Constable Gregory Salmon of the Western Crash Investigation Unit; (d) Snr Constable Leslie Andrews of the Western Region Crash Investigation Unit (who did not attend the scene until 6 months later in July 1999 when he replaced Sgt Tillott); (e) Dt Sgt Tim Mealing of the Western Region Crash Investigation Unit, Bathurst (who prepared the photogrammetry plan as the result of his attendance at the scene in July 1999 with Snr Constable Andrews). 38 Sgt Tillott of the Western Crash Investigation Unit did not give evidence, because he was disabled by illness which rendered him unfit to give evidence or to perform Police duties. However his handwritten Scene Investigation Report of his observations at the scene was admitted in evidence (Exhibit E, Blue, 34-40). 39 Mr Tajiki's southbound brown Nissan, after the collision, ended up upside down and facing in the opposite direction (north) to that which it was travelling, with the vehicle being wholly within the southbound lane. 40 Mr Mitchell's white Capri, following the collision, ended up on the western side of the roadway, upright, and facing back towards the roadway in a south-easterly direction. 41 Mr Tajiki's brown Nissan appeared to the Investigating Police who came to the scene to have left skid-marks wholly within his southbound lane. Whether it in reality did so was a matter of dispute, in which the respective experts differed. These skid-marks as observed by Sgt Tillott were 13.1 metres long (offside) and 6.7 metres long (nearside) with the offside skid-mark commencing before and finishing after the nearside skid-mark. That night, the Police photographed these skid-marks, which they had marked with white paint dots (Blue, 1-18, photos 1-35). The next day the roadway was photographed in daylight with those white paint dots still on (Blue, 18-25, photos 36-50). At a much later stage (27 July 1999) a photogrammetry plan was prepared by Det Snr Constable Mealing based upon the remarking of those white dots (Blue, 27). 42 The photos to which earlier reference has been made show both skid-marks but importantly also three gouge marks. They are marked in the photos by three cones numbered respectively 4, 5 and 6, with the cones 4 and 5 being on the northbound lane and cone 6 on the southbound lane. The trial judge describes the gouges and cones in these terms (Red, 92), "There were two gouges 1.4 metres apart straddling the centre lane. The eastern gouge was marked with cone 6. It has been described as a dual gouge mark, part of which is straight and part curved. The gouge west of the centre line was marked with cone 5 and has also been described as a scrape. The third gouge on the western side of the northbound lane .7 metres from the white fog line, was marked with cone 4. It has developed into a pothole." 43 The third gouge was described by the respondent's expert, Mr Keramidas, without dispute, as being the more substantial gouge (Blue, 146), being "significant in its depth, penetrating through the road surface into the sub-grade [evidenced by the throw of dirt from within the gouge]. The gouge has a crescent shape and is indicative of a major contact at that point." 44 However, what is then stated by Mr Keramidas is in dispute, namely that "this gouge most likely identifies the point of impact". The controversy centres round whether the point of impact was on the northbound lane as is the conclusion of the respondent's expert Mr Keramidas, or on the southbound lane as is asserted by the appellant and his expert Mr Brown, that being crucial to whether the appellant was on the wrong side of the road as the trial judge concluded. The skid-marks if made by the appellant would support the appellant's case that he was in his right lane and the respondent in his wrong lane. Whereas the deep gouge, were it the site of the collision, points to the appellant being in his wrong lane and the respondent being in his right lane. The trial judge accepted Mr Keramidas' interpretation of this evidence finding for the respondent. 45 It is convenient that I turn now to the competing experts' reports. Competing Experts' Reports 46 The Civil & Forensic Pty Ltd report written by Alan Brown was prepared for the plaintiff (and now appellant) on 2 April 2002 (Blue, 59). The main hypothesis posed and supported was that the accident had occurred in the southbound lane (the correct lane for Mr Tajiki). That conclusion was based on the existence of skid tyre marks on this side of the road. These were said to have been caused by the accident, leading up to the point of impact (Black, 63). According to Mr Brown, these skid-marks were consistent with being made by Mr Tajiki in his Nissan (Blue, 62; Black, 47), and with his braking within his own correct lane before being hit head-on (with an overlap of half a metre (Black, 48)) by Mr Mitchell in his Capri in his wrong lane. Police investigating the accident on the night of the collision and the next day noted these skid-marks in the lane of Mr Tajiki (Red, 92-3; Blue, 1-2, 40, 90). The skid-mark closest to the edge line was measured by police to be 6.7 metres long and the skid-mark closest to the centre of the road was measured as being 13.1 metres long (Blue, 62). In contrast to the findings of Mr Brown, the report of William Keramidas & Associates, written by Mr Keramidas, prepared for the defendant (now the respondent), contended that the accident occurred with Mr Tajiki being wrongly in the lane of Mr Mitchell (Blue, 130). Mr Keramidas it should be noted, first inspected the accident scene one year later. The Skid Marks 47 Mr Keramidas gave a number of reasons, citing various items of evidence, as to why he concludes that it was unlikely that the subject skid-marks were caused by the plaintiff's Nissan car on the night of the accident (Blue, 148-9). This was first, because Mr Keramidas was of the view that the skid-marks continued well past the scene of the accident. Second, those skid-marks, according to Mr Keramidas were more consistent with a dual-wheeled vehicle such as a truck than a small car (Blue, 148). Thus Mr Keramidas contended that the Nissan of Mr Tajiki did not lay down the skid-marks. He also contended that the skid-marks must have been present at the time of the accident, but from before the accident. This was to explain and be reconciled with the police observations, whereby they observed skid-marks on coming onto the accident scene, which were then marked with yellow paint. 48 The trial judge however rejected the existence of the extended skid-marks laid down by a dual-wheeled vehicle being present at or before the accident. She considered that the extended skid-marks must have been laid down after the accident (Red, 101). This was on the basis that no police officers investigating the scene soon after the accident had noted skid-marks that extended past the point of the accident. Nor had they noticed skid-marks indicating a dual-wheeled vehicle (Red, 100-101). The trial judge found it unlikely that the police officers would have missed such extended lines. She thus concluded that the extended skid-marks were laid down at a time subsequent to the accident (Red, 100-101). This was so as to be observable as such a year later when Mr Keramidas did his first inspection, but not observable as such at the time of the accident. 49 There were other significant differences between the reports of Mr Keramidas and Mr Brown on the subject of the skid-marks as follows: (i) The first point of departure was on the subject of possible scuffing to the tyres caused by braking or skidding by Mr Tajiki's car. Mr Keramidas contended that if Mr Tajiki's car had skidded for 13.1 metres it would have left scuff marks on the tyres of his car (Blue, 148; Black, 241-2). However, Mr Keramidas had inspected the car of Mr Tajiki and found no evidence of any scuffing (Blue, 139). In contrast, Mr Brown believed that scuff marks are determined by longer braking times and are variable depending on temperature and tyre composition (Red, 95) so that their absence was not significant. (ii) Second, Mr Keramidas noted that there was no valid explanation for the fact that the skid-marks ended at different points (Red, 96-7). Mr Brown, when cross-examined could ultimately offer no explanation either as to why the skid-marks would end unevenly, if the same vehicle had laid them down despite attempts to explain, based on uneven braking or cessation of braking just before the accident (Black, 104-106). (iii) Third, Mr Keramidas posited that if the skid-marks had led to the point of impact then Mr Tajiki's car could not have ended up in its final position ' as a matter of straight physics ' (Blue, 148; Red, 97; Black, 227,337). "It would be further expected that the general post-impact motion [apart from rotation] would be to the northeast for the Nissan and southwest for the Ford. The basis of this predicted path is the combination of the pre-impact momentum of the vehicles in an east-west orientation and the "deflection" in a north-south orientation caused by the engagement of the two vehicles during crush (Blue, 148)." Thus the impact from collision would have caused the car to end up further east and closer to the edge of the road than it did (Red, 97). On cross-examination Mr Keramidas agreed that the vehicles would hang onto each other longer if they had become entangled. However, he considered such entanglement to have been unlikely to have occurred (Red, 97). 50 Where the opinions of Mr Keramidas and Mr Brown conflicted, the trial judge preferred the opinion of Mr Keramidas (Red, 99). On the basis of Mr Keramidas' reasoning, and the failure by Mr Radsgar, the passenger in Mr Tajiki's car, to mention any braking or skidding in his evidence (Black, 17, 20), the trial judge concluded that the subject skid-marks mentioned in the report of Mr Brown were not caused by Mr Tajiki's vehicle. Rather they were caused previous to the night of the accident (Red, 101). 51 I consider it was open to the trial judge not to accept that part of Mr Keramidas' reasoning as led him to conclude that the extended skid-marks pre-dated the accident, and still accept his other reasons for concluding that the skid-marks observed at the date of the accident were not made by Mr Tajiki's vehicle. This is more particularly when the evidence indicates that there were sources of skid-marks on the road not limited to those specifically identified. There was evidence that there were two properties nearby with big semi-trailers turning in and out, well able to explain skid-marks not related to the accident. Thus at Red, 101, the trial judge's findings on that score are clearly set out, and should be read as if the word "other" were inserted where I have indicated: "The police witnesses and Mr Jones are all of the view that the only skid marks on the roadway that evening were those marked with yellow paint. Most of those witnesses only saw the skid marks at night with the use of flood lights. In those circumstances they could have been mistaken. However both Senior Constable Salmon, Senior Constable Andrews and Mr Jones said that they were not visible at a time after the accident but before Mr Keramidas' inspection of the scene. While their precise evidence is difficult to reconcile, I am satisfied that the weight of the evidence establishes that the extended skid marks must have been laid down after the accident. I find that: § The skid marks marked by the police were not left by Mr Tajiki's vehicle, for the [other] reasons given by Mr Keramidas. I also take into account Mr Brown's concession in cross examination as to the skid marks ending evenly and the failure by Mr Rasdgar to mention braking or skidding in his evidence; § At all relevant times Mr Mitchell's vehicle was on the correct side of the roadway § At the point of impact Mr Tajiki's vehicle was travelling on the incorrect side of the roadway. § After the impact, each of the vehicles travelled in the path outlined by Mr Keramidas." 52 Thus the trial judge's carefully explained reasons do not, contrary to what is put in appeal ground 4, lead to error based on inconsistent findings. The trial judge was still able to accept the balance of Mr Keramidas' opinion without logical contradiction. In sum, it was open to find that the skid-marks do not compel the conclusion that Mr Tajiki's vehicle caused them. The Gouge Marks 53 The two expert reports also differed on other particulars of the evidence gathered by police. Mr Brown did not have a firm view of the point of impact but believed that the cars impacted in the southbound lane within 1.5 metres of gouge mark 6 (Black 68; Red, 95). After the impact both cars would have spun in a clockwise fashion with Mr Mitchell's car causing gouges 4, 5 and 6 as it moved across the northbound lane and off the roadway (Red, 95). It was common ground that the rear passenger side-wheel rim of Mr Tajiki's vehicle was damaged with both bitumen and stone chips (Red, 94). 54 On cross examination Mr Brown agreed that if Mr Mitchell's vehicle had caused all the gouges then the damage to the wheel rim of Mr Tajiki's vehicle must not have left a gouge (Red, 96). Mr Brown suggested that the contact that the wheel rim made with the road must have caused only a slight abrasion, which had failed to be noted by the investigating police officers. There was later evidence from Senior Constable Salmon and Mr Jones of various abrasions on the roadway which they agreed that they had not mentioned in any earlier statement or evidence (Black, 147). 55 Mr Keramidas, in contrast, contended that the point of impact was in the northbound lane (Black, 151, 154) and stated that while each of the gouge marks, considered separately, could have been caused by Mr Mitchell's vehicle, when taken together they could not be so explained (Black, 227). For example, if Mr Mitchell's vehicle caused gouge marks 5 and 6 and then rotated clockwise to the left, it would not leave the north-south oriented gouge at gouge mark 4 (Black, 288). 56 Mr Keramidas was of the view that the physical evidence was consistent with the point of impact occurring at gouge mark 4 (Black, 290). It was the deepest gouge consistent with the deep downward force that occurred with the submarining on impact (Black, 290). He contended that this gouge mark was caused by the underside of Mr Mitchell's vehicle, probably the front off-side towing hook (Black, 230). It was common ground that this hook had received abrasive damage (Red, 95). Mr Mitchell's vehicle then moved in a clockwise arc off the roadway. Mr Tajiki's vehicle rotated clockwise and moved across the roadway to the east. As it was rotating and tipping, the weight of the lead wheel led it to dig into the roadway making the longer gouge (Black, 231). Mr Keramidas posited that as the vehicle continued to move, the wheel rim connected with the roadway leaving the shorter part of gouge mark 6. This accounted for the bitumen and stone chips on the wheel rim of Mr Tajiki's car. This contact tipped the vehicle slowly onto its near side, accounting for the damage at the leading edge on the side of the vehicle causing gouge mark 5. He thus was able to give an explanation for the accident which accommodated all of the evidence in this way. 57 In the opinion of Mr Brown, gouge mark 6 could not have been caused by Mr Tajiki's vehicle, after a collision at gouge mark 4. This he said, was because it would have been travelling in a clockwise direction while the gouge showed an anti-clockwise movement. However, in cross-examination Mr Keramidas explained that as a wheel bites it affects the motion of the vehicle. The contact had the effect of arresting the clockwise spin bringing the vehicle around until the contact ended. This, Mr Keramidas contended, was consistent with the direction of gouge mark 6, which was initially straight then curved (Black, 296-7). 58 Counsel for Mr Tajiki also submitted that Mr Keramidas failed to properly explain the basis on which he arrived at his conclusions (Red, 99). The trial judge found rather that this criticism applied to the report of Mr Brown (Red, 99). Her Honour was of the view that the requirement in Makita (Australia) Pty Ltd v Sproules (supra), of needing an 'intelligible, convincing and tested' opinion, was satisfied by Mr Keramidas who 'gave clear and cogent explanations of the reasoning leading up to his conclusions and appropriately and adequately referred to the underlying scientific principles' (Red, 99-100). In addition the trial judge believed that Mr Keramidas provided criteria to aid the 'validity of his conclusions' (Red, 99). Trial Judge's findings 59 The trial judge was firmly of the view that Mr Keramidas' opinion 'was to be preferred to that of Mr Brown' (Red, 99). Mr Keramidas' 'conclusion as to the mechanism and post-impact dynamics was found to be consistent with all of the physical evidence at the scene of the accident' (Red, 100). The trial judge believed that Mr Keramidas 'clearly explained why Mr Tajiki's vehicle could not have ended up in its final position if the impact had occurred around the area described by Mr Brown' (Red, 100). The trial judge also found that Mr Keramidas had explained the gouge marks consistent with the damage to Mr Tajiki's vehicle. Her Honour found that Mr Brown had failed to adequately deal with either of these issues (Red, 100). The trial judge found that Mr Keramidas' explanation took into account all the factors of the accident (Black, 293) whilst Mr Brown's account failed to explain multiple pieces of evidence. Conclusion 60 (i) I consider that the trial judge was entitled to conclude as she did, in preferring Mr Keramidas' explanation over Mr Brown's; in particular in concluding that the former's explanation was consistent with all the physical evidence, whereas the latter's was not. (ii) There is no basis for appeal ground 5 and related ground 6. This was to the effect that the trial judge should have held that "the evidence which was given as to the intellectual basis of such conclusions [of Mr Keramidas] did not meet the tests laid down by Heydon JA in Makita (Australia) Pty Limited v Sproules at 729. (iii) To the contrary, as the earlier summation demonstrates, he " did furnish the trier of fact with criteria enabling the evaluation of the expert's conclusions ". (iv) Moreover, his conclusions hardly merited the pejorative " ipse dixit ". Nor does it substantiate any justification for criticising the trial judge on the basis that she accepted such conclusions without properly examining their underlying factual bases. On the contrary she examined them carefully and explains her reasoning very clearly. (v) Finally, contrary to what was put by the appellant, Her Honour did address the extent to which the physical evidence found at the scene of the accident was consistent with the appellant's vehicle being on its correct side at the time of the collision. She concluded, as she was entitled to do, that it was not. REMAINING APPEAL GROUNDS 61 I have dealt earlier with those appeal grounds pertaining to Ms Honana and Ms Wortmann. There is nothing in the attack on the credibility of those witnesses which would point to appellable error. It remains to deal with appeal ground 3. The appellant attacks the credibility of the respondent Mitchell on the basis that "Her Honour held that the defendant did not have a motivation to lie, because of his past driving record". However, what the trial judge said was, "I do not consider that Mr Mitchell's driving record indicates that he had 'a plain motivation to lie' … particularly in circumstances where there is no suggestion that he was speeding. I accept that he was not aware that his licence had been suspended for non-payment of a dog fine." (Red, 99). Clearly Her Honour was referring to motivation to lie over and above that which would attend anyone in Mr Mitchell's position. That can afford no basis for any attack on the trial judge's consideration of the credibility of the respondent. OVERALL CONCLUSION 62 I consider that the appeal should be dismissed and the appellant should pay the respondent's costs. ********** Last Modified: 08/05/2003 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.