New South Wales Court of Appeal CITATION: Yakmor v Hamdoush [2009] NSWCA 137 HEARING DATE(S): 1 June 2009 JUDGMENT DATE: 9 June 2009 JUDGMENT OF: Giles JA at 1; Ipp JA at 28; Tobias JA at 29 DECISION: Appeal dismissed with costs. CATCHWORDS: TORTS - negligence - motor vehicle accident - whether defendant drove so as to allow plaintiff's vehicle to come up on his passenger's side - evidence insufficient for that to be found - negligence not made out - no question of principle. CASES CITED: Jackson v Lithgow City Council [2008] NSWCA 312 PARTIES: Shady Yakmor (by his tutor Nadine Yakmor) - Appellant Mohamad Hamdoush - Respondent FILE NUMBER(S): CA 40151/08 COUNSEL: B Dooley SC & R Harrington - Appellant J Poulos QC & V Heath - Rspondent SOLICITORS: Carroll & O'Dea - Appellant Moray & Agnew - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1577/06 LOWER COURT JUDICIAL OFFICER: A Balla DCJ LOWER COURT DATE OF DECISION: 1 May 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40151/08 DC 1577/06 GILES JA IPP JA TOBIAS JA Tuesday 9 June 2009 YAKMOR v HAMDOUSH Judgment 1 GILES JA: The appellant was injured in a motor vehicle accident on 2 June 2004. In proceedings in the District Court he alleged that the accident was caused by the negligent driving of the respondent. Damages were agreed, subject to approval, but liability was in issue. Balla DCJ was not satisfied that the appellant had shown a breach of duty of care on the part of the respondent. 2 The appellant was driving a Honda Civic, with passengers Mohamad Obeid in the front passenger seat and Hussain Alamaddeine in the driver's side rear seat. The respondent was driving a Holden Commodore, with passengers Tofic Alamaddeine in the front passenger seat and Ramy Abdelhalim in the passenger's side rear seat. The drivers and passengers were friends, 17 or 18 years of age save that Tofic Alamaddeine was 21 years old. They were returning from an evening of fishing in the Watsons Bay area. 3 The accident occurred in Homer Street, Kingsgrove at about midnight. Both vehicles turned right into Homer Street from Bexley Road. From there the roadway was initially straight with an uphill grade. It then took a gentle right hand curve. Part way though the curve the roadway crested and dropped into a dip, following which was another straight section with an uphill grade. Homer Street was marked for its length relevant to the accident with a double unbroken centre line and allowed for a single lane of traffic in each direction; however, it was quite wide, with room for parked vehicles and the passage of traffic in each lane. 4 About 680 metres from Bexley Road, and some way up the second uphill grade, Arinya Street joined Homer Street to the left of the driver of a vehicle travelling as these vehicles were. Where Arinya Street entered Homer Street a "crown" was formed intruding into Homer Street, so that a vehicle driving along Homer Street would encounter a 10 metre hump, more pronounced on the left side of the lane. 5 The appellant's vehicle left the road about 50 metres beyond the Arinya Street intersection. It collided with a tree on the left side footpath about 70 metres past the intersection, towards the top of the uphill grade. Mohamad Obeid was killed, and the appellant and Hussain Alamaddeine were injured. 6 The appellant's case was opened that the respondent's vehicle was in front of his vehicle just prior to the accident; that as the vehicles proceeded up Homer Street, the respondent's vehicle moved towards the centre line of Homer Street and slowed down, which (in the absence of parked vehicles) allowed the appellant's vehicle to move beside the respondent's vehicle; that the two vehicles travelled down Homer Street at between 50 and 60 kilometres per hour with the windows down and the two drivers engaged in conversation; and that the respondent's vehicle then pulled slightly in front of the appellant's vehicle and veered towards it, causing it to go off the road and hit the tree. 7 This case, in which the respondent's negligence lay in veering towards the appellant's vehicle causing it to go off the road, was rejected by the trial judge. Her Honour found that the appellant drove at about 60 kilometres per hour across the hump at the Arinya Street intersection, parallel to and about one and a half metres out from the kerb of Homer Street. The hump and the weight of the driver and passengers caused the vehicle to experience a significant up and down movement and "bottom" on the departure side of the hump. The drag of the bottoming caused the vehicle to pull to the left, and it came into contact with the kerb. The appellant responded by steering to the right, which caused his vehicle to come into contact with the respondent's vehicle; in this respect, her Honour described scrape marks on the passenger's side of the respondent's vehicle from just in front of the rear wheel arch to the rear of the vehicle, and together with other indicia found that the damage to the two vehicles was consistent with the respondent's vehicle being half a car length ahead of the appellant's vehicle and the appellant's vehicle moving up the passenger's side of the respondent's vehicle (that is, travelling slightly faster than the respondent's vehicle). The contact with the respondent's vehicle did not cause the appellant's vehicle to deviate, but the appellant reacted by steering to the left, and this resulted in his vehicle mounting the gutter and colliding with the tree. 8 The appellant did not take issue with these findings. It was submitted on appeal that the respondent's negligence lay in driving his vehicle in close proximity to the appellant's vehicle and allowing the appellant's vehicle to come up on the passenger's side of his own vehicle, so that the occupants of the two vehicles could talk to each other. This was negligent, it was said, because it left no margin for error in the event of an incident which foreseeably could occur in the nature of that which did occur. The appellant accepted that, for breach of duty, it was necessary that the driving in this manner be consensual; relevantly, with the respondent's participation. It was not enough that the appellant drove to move up on the passenger's side of the respondent's vehicle and partially overlap it. 9 In elaboration, the appellant submitted that it should have been found, and should be found, that the two vehicles were side by side as they passed the Arinya Street intersection, with the occupants talking between the vehicles. He said that the explanation for the respondent's vehicle being half a car length ahead of the appellant's vehicle was that the progress of the appellant's vehicle had been retarded by bottoming on the hump, and that the explanation for the appellant's vehicle moving up the passenger's side of the respondent's vehicle was that the respondent had braked when becoming aware of imminent contact or contact between the two vehicles. Retardation had some support in the expert evidence, but braking had no support in the evidence. That the two vehicles were side by side, at least sufficiently for the occupants to be talking between the vehicles, at about the Arinya Street intersection was according to the submission the basis for finding the consensual driving necessary for breach of duty. 10 Although it is doubtful that the pleadings or the conduct of the case embraced it, a brief submission of this kind was made at the trial. The trial judge correctly recorded the submission that the respondent "was negligent in driving in a common purpose way beside the plaintiff and putting his car in that position". 11 Her Honour relevantly dealt with the submission - "Counsel for the plaintiff did not identify the action he was suggesting the defendant should have taken. It seems however that there would have been a limited number of available options – either to travel more slowly or to stop. I accept that the defendant would or should have had some idea of the location of the plaintiff's vehicle because the headlights were on and it was dark. It is likely that during the journey from the eastern suburbs to Homer St the occupants of the two vehicles did speak to each other through open windows. However it was not suggested that at any relevant time the defendant was exceeding the speed limit. He was driving about one metre to the left of the centre line. In that area of the road was wide enough for two vehicles to travel side by side although there was only one marked lane. The accident occurred as a consequence of the plaintiff losing control of his vehicle because it had bottomed on the Arinya St intersection hump. That was unrelated to any act of the defendant. The fact that the defendant's vehicle was 'in the way' after the plaintiff lost control is not an act of negligence on the defendant's part – he was travelling within the speed limit on the correct side of the road." 12 The appellant submitted to the effect that this reasoning did not meet his submission of driving "in a common purpose way", or adequately deal with the evidence on which he relied for a finding that the two vehicles were side by side at about the Arinya Street intersection with the occupants talking between vehicles. The evidence was in a police statement of Hussain Alamaddeine and evidence given by the respondent's sister of an admission said to have been made by the respondent. 13 Hussain Alamaddeine gave his statement on 23 September 2004. It included - "5. Shady [the appellant] drove along Homer Street towards Kingsgrove Road. Mohamad [the respondent] was driving the Commodore in front of us. Shady drove up a hill, he was probably doing about 60 km/h. I couldn't see the speedo or anything but it didn't feel any faster than that. Mohamad was just ahead of us and the front driver's side of Shady's car was just level with the back passenger side of Mohamad's car . There weren't any cars parked on the side of the road or anything so the road was pretty clear. 6. Shady got to the top of the hill and the bottom of the car kind of hit the hump in the road. It wasn't a speed hump, it was just like the rise in the road at the top of the hill. I felt the bang on the bottom of the car, I suppose with all the weight in it the car was lower to the ground than normal. As soon as the car hit that hump Shady kind of lost control of the car. 7. The car swerved to the left and the front wheels just scrapped [sic] against the gutter, it didn't hit it hard. The car then swerved back to the right and it hit the back passenger side of Mohamad's car. It was just like a graze. Shady's car then swerved back to the left and it went up the gutter and hit the tree. … 10. Just before the accident as we were driving along Homer Street we were just talking with each other . We weren't racing the other car driven by Mohamad or anything like that or mucking around. We were just on our way home." (emphasis added) 14 The trial judge recited these paragraphs from the statement in finding how the accident occurred, but did not specifically advert to the parts I have emphasised when coming to her conclusion as to breach of duty. 15 The respondent's sister gave evidence of asking him on the night of the accident what happened, and receiving his reply, "We were just driving and we were talking to one another, and then the next thing they hit, and then he landed into the tree, and that was it". This was repeated in the words - "Q. Can I ask you did you repeat the conversation then as best you remember it? Those words you just said, is that what you recall him saying? A. Yeah, he said that they were speaking to one another, they were speaking to one another. Q. Yes. A. And then they hit into each other, and then the next thing he knew that Shady was in the tree." 16 The trial judge referred to this as evidence on which the appellant relied for an admission "that the cars were driving side by side and that they were talking at the time of the accident". While accepting "that at some stage the occupants of the two cars may have been talking to each other", her Honour said that the admission "is not clearly relevant to the moments before impact and does not overcome the physical evidence. The vehicles were not side by side when they collided". The "physical evidence" was the evidence of the scuff marks and other indicia. At least on appeal, the appellant relied on this evidence as an admission going not to the moment of the contact between the two vehicles, but to the preceding time when the vehicles passed the Arinya Street intersection. 17 There was, however, further evidence on which the respondent relied. 18 First, the police conducted an ERISP interview with the respondent about three weeks after the accident. The respondent said to the effect that the appellant's vehicle was behind his vehicle and he was not really looking at it, he was just driving; he felt a "nudge", the contact with the appellant's vehicle, and saw the vehicle "sort of behind me and on the left and that's it". He said he did not notice the appellant "moving around on the road behind [him]" or change his own position on the road. His account was not consistent with the cars travelling side by side in Homer Street. With an agreed correction to the transcript in evidence, the questions and answers included - "Q138 Now as you were driving along just before you felt this bump what were you doing in the car, was Tofic doing something in particular or was .- - - A ….. Q139 - - - Ramy doing something in particular? A Just driving and we were talking amongst each other. Q140 Yes. O.K. A Normal … Q141 All right. Did you have the radio on? A. Probably yeah, not sure. Q142 What about the car windows were they down or up? A. Can't really remember. Can't remember, Tofic smokes so obviously they were down, yeah, his one was down probably 'cause he always has it half down or something 'cause he smokes. Q143 O.K. what about the back, back one? A I dunno. Q144 You don't know? So you don't know … any reason why Shady might've wanted to come up beside you or drive up beside you? A. I dunno, I'm not sure, man, could've been anything, I dunno. Q145 If I suggest to you that you might've been racing with him, what have you got to say about that? A No, no way. If I was racing with him, you know, his car's little, car's big … next each other. It's a one lane street, no way, no way, man. Q146 So as I said you've been driving around on other occasions with Shady driving the other car? A. I have a coupla times. Q147 A couple of times. Has he tried to do this on previous occasions? A Do what? Q148 Come up beside you … - - - A No, not on a one lane street. Q149 No? A. No, not on a one lane street. On normal roads, yeah, like two lanes, three lanes, like I ask where he's going or something like that, yeah." 19 Secondly, in an insurance investigator's statement taken in April 2005 the respondent said that when driving along Homer Street "I knew Shady was behind me but I really didn't look at them", and - "11. In my drive to that location, I drove normally as did Shady. Anyway I drove up Homer Street and when I was just getting onto the top of the crest when I felt a nudge in the back of the car. It didn't make me swerve or lose control. I looked around straight away on either side of me without looking to the back and said to Tofic, 'What was that?'. Immediately I heard a bang and straight away I pulled over to the left and then done a U turn and stopped." 20 Thirdly, the expert Mr William Keramidas gave evidence that while Homer Street was relatively wide, its hilly nature and the presence of traffic islands, including a traffic island at the bottom of the dip earlier mentioned, would have made it very difficult for the two vehicles to maintain a side by side position for any distance along the section of roadway. Mr Keramidas said that while it would be possible, the drivers would need to be expert to maintain a parallel side by side path for the 750 metres from Bexley Road to the place where the accident occurred. 21 The trial judge did not refer to any of this evidence in her reasons. It must be taken into account in considering the respondent's submission that Hussain Alamaddeine and the respondent were referring to talking within the respective vehicles, not talking between them, and in any event that the evidence on which the appellant relied did not sufficiently relate any occasion when there was talking between the vehicles to the uphill grade past Arinya Street. 22 The statement of Hussain Alamaddeine is a fragile basis for the appellant's submission. His positioning of the cars driving along Homer Street is barely consistent with talking between the two vehicles, and suggests that the "talking with each other" in para 10 was talking within the appellant's vehicle. It is also not clear as to when in Homer Street the cars were in the relative positions he described, and "just before the accident we were driving along Homer Street" is not particularly specific. From the statement, the appellant may have been driving so as to partly overlap the respondent's vehicle on its passenger side as the vehicles went uphill past Arinya Street, but it is difficult to conclude that the respondent allowed that to occur so that the occupants of the two vehicles could talk to each other. 23 What the respondent said according to his sister, if taken alone, could more readily be understood as referring to the occupants of the vehicles talking between the vehicles, at least in the repeated version. But together with the ERISP interview the respondent can also readily be understood as referring only to talking within his vehicle. The respondent did not otherwise say anything of the positions of the two vehicles, and consistently with the trial judge's findings he can not have meant that the occupants were talking between the vehicles at the moment they "hit into each other". If they were talking between the vehicles at a time beforehand, when beforehand is far from clear. 24 The trial judge did not accept the appellant's evidence, finding that he did not remember the events leading up to the accident. Neither Hussain Alamaddeine nor the respondent gave evidence, despite the issue of subpoenas and bench warrants. Neither Tofic Alamaddeine nor Ramy Abdelhalim gave evidence: we were not taken to any explanation for their absence. The appellant's submission must be addressed on less than satisfactory evidence, but it was and is for the appellant to establish on the balance of probabilities that the respondent was negligent in the manner for which he contended – not as a choice between guesses, but because the facts provide a reasonable basis for an affirmative satisfaction, see the relevant principles summarised by Allsop P, Basten JA and Grove J agreeing, in Jackson v Lithgow City Council [2008] NSWCA 312 at [4]-[12]. 25 In my opinion, it does not rise above speculation that the two vehicles were side by side as they passed the Arinya Street intersection, with the occupants talking between the vehicles. The appellant's vehicle was well to the left of the roadway as it went over the hump, on the trial judge's finding about one and a half metres out from the kerb. When the two vehicles made contact it was moving up on the passenger's side of the respondent's vehicle. From this it may be inferred that the appellant intended to come up beside the respondent's vehicle and was driving accordingly. But the respondent was driving in a position appropriate for normal driving, about a metre to the left of the centre line, and I am not persuaded that he put his vehicle in that position to allow the appellant's vehicle to move up on its passenger's side so that the occupants of the two vehicles could talk to each other. Having regard to the ERISP interview and the evidence of Mr Keramidas, the evidence on which the appellant relied is insufficient for a finding that at a time preceding the accident, as the vehicles went uphill past the Arinya Street intersection, the respondent in his driving participated in the appellant's apparent intention to come up beside his vehicle so that the occupants could talk between the vehicles. 26 Accordingly, I consider that the trial judge correctly held that breach of a duty of care had not been made out. It is not necessary to consider causation, although it is by no means clear that by his vehicle being where it was the respondent contributed, on the common sense approach to causation in law, to the accident occurring. 27 I propose that the appeal should be dismissed with costs. 28 IPP JA: I agree with Giles JA. 29 TOBIAS JA: I agree with Giles JA. ********** 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.