Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v Mokbel [2015] NSWCA 3 Hearing dates: 6 November 2014 Decision date: 06 February 2015 Before: Basten JA at [1]; Ward JA at [60]; Adamson J at [61] Decision: (1)Allow the appeal and set aside the judgment of the District Court given on 25 March 2014. (2)In place of the orders of the District Court, (a)give judgment for the defendant, and (b)order that the plaintiff pay the defendant's costs of the proceedings. (3)Dismiss the cross-appeal. (4)Order that the respondent pay the appellant's costs in this Court. (5)Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW) with respect to his costs of the appeal. Catchwords: APPEAL – challenge to assessment of evidence at trial – no issue of principle TORTS – motor accident – claim against Nominal Defendant – whether unidentified vehicle involved – whether unidentified vehicle negligently driven Category: Principal judgment Parties: The Nominal Defendant (Appellant/Cross-Respondent) Khoda Mokbel (formerly Saleh) by his tutor Siham Saleh (Respondent/Cross-Appellant) Representation: Counsel: Mr PJ Deakin QC/Mr DM Wilson (Appellant) Mr B Dooley SC/Mr J Jobson/Ms T Phan (Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Milicevic Solicitors (Respondent) File Number(s): CA 2014/117504 Decision under appeal Court or tribunal: District Court Date of Decision: 25 March 2014 Before: Norton SC DCJ File Number(s): DC 2004/18977 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: On 5 June 2000 the respondent, Khoda Mokbel (formerly known as Khoda Saleh) was severely injured when he lost control of his car and collided with a street light pole on Stacey Street, Bankstown. The proceedings were brought against the Nominal Defendant on the basis that there was an unidentified vehicle, the negligent driving of which caused the respondent to lose control of his vehicle. A trial before Judge Norton SC in the District Court resulted in a judgment in favour of the respondent in a sum of $350,000, being the agreed damages reduced by 30% for contributory negligence. 2. The Nominal Defendant challenges the finding on liability and the inadequacy of the assessment of contributory negligence. The respondent, by a cross-appeal, challenges the finding of contributory negligence as grossly excessive. For the reasons explained below, the appeal must be allowed with respect to liability and the judgment set aside. As the evidence did not establish negligence on the part of any other driver, no question of contributory negligence could arise. It follows that the cross-appeal must be dismissed. Background 1. The case has had a long and unfortunate history, which is relevant in so far as it explains the somewhat unusual course of the trial. The respondent had been prosecuted in the Local Court for a driving offence arising out of the accident; an earlier trial had been held in the District Court before Levy DCJ (the judgment being set aside on appeal) and an aborted retrial before Sorby DCJ. The current appeal arose from a third trial in the District Court. Unlike many claims brought against the Nominal Defendant with respect to unidentified vehicles, there were three eye-witnesses to the accident, although the driver, because of his injuries, was unable to recall the events immediately preceding the accident. Portions of the transcripts from these earlier proceedings formed part of the evidence in the latest trial. 2. Names were a potential source of confusion. The major thoroughfare on which the accident occurred was identified in the police report as Stacey Street, and the street with which it intersected was referred to as "Old Stacey Street". The intersecting street is also identified as Stacey Street on one side, and Stacey Street South on the other. The street on which the accident occurred is known as Fairford Road to the south, being the direction in which the respondent was travelling. It will be convenient to refer to the thoroughfare as Fairford Road and the intersecting street as Stacey Street. 3. The names of the respondent and the passenger in his car have also varied over the years. The police report, prepared in June 2000 identified the respondent as the owner and driver of the vehicle, a yellow Holden Gemini, by the name Khodor Mokbel. The statement of claim in the District Court, issued in March 2004, identified the plaintiff as "Rodger Mahony (previously known as Khodr Mokbel)". In the most recent trial, the plaintiff was identified in the judgment both as Khoda Saleh and as "Khoda Mokbel (formerly Khoda Saleh)". The notice of cross-appeal identified him as Khoda Mokbel (formerly Khoda Saleh). He will be referred to by name, where necessary, as Mr Mokbel. 4. The respondent's passenger has also changed his name on occasion. At the time of the accident, and for some years thereafter, he was known as Khaled Jaouhar. By the time he gave evidence in March 2014 he was known as Carl Michaels, although the change had apparently been registered as early as 2006. [1] He will be referred to as Mr Michaels in these reasons. Objective evidence 1. Prior to losing control of the vehicle, the respondent was driving south on Fairford Road in lane 3, being the lane closest to the median strip. About 100 metres before Stacey Street entered on the right, the median strip narrowed to create a fourth right hand turn lane. The electric light pole with which the respondent collided was situated on the kerbside of Fairford Road, adjacent to lane 1 which, at about that point, became a left turn lane, as indicated by arrows painted on the road. 2. One of the police officers attending the scene of the accident identified skid marks commencing in the middle of lane 2 (the centre lane) some 23 metres before the point of impact with the pole. A witness travelling in a separate vehicle in lane 1 described the respondent's vehicle as coming from the outside lane, passing in front of her and hitting the light pole. She was able to brake to avoid the collision but described him as missing by a small distance. She herself stopped and tried to assist the injured passenger and driver; she called an ambulance. She noticed that the handbrake of the vehicle was on. It was accepted by the experts that the loss of control, which caused the car to "fishtail" was probably caused, or at least accentuated, by the driver engaging the handbrake whilst travelling at some speed. 3. From the state of the vehicle following impact, the experts were able to estimate the speed at the point of impact. Mr Grant Johnston (instructed by the solicitors for the respondent) estimated the speed at between 30 and 40km/h. Mr Keramidas (instructed for the Nominal Defendant) estimated the speed at between 43 and 50km/h. At the start of the skid, Mr Keramidas estimated the likely speed of the respondent's vehicle as between 62 and 67km/h on the assumption that only the handbrake was activated or, if both foot brake and handbrake were activated, at between 78 and 83km/h. If there had been some braking prior to the commencement of the skid, Mr Keramidas noted that the vehicle could have been travelling at a potentially much higher speed, prior to the braking. 4. In the course of giving their joint evidence, the experts agreed on a pre-skidding speed of 60km/h plus or minus 5km/h. The maximum speed in the area on Fairford Road was 70km/h. 5. The skid commenced approximately 27 metres after the commencement of the tapering right hand turn lane. By the time of the skid commencing, the turn lane was approximately half its full width. Thus, depending on its speed and the point at which the respondent's vehicle moved from lane 3 to lane 2, it appeared on this evidence unlikely that any vehicle could have passed the respondent's vehicle on the outside with time to swing back in front of it and cause the collision. Descriptive evidence 1. Although, as will be seen, the trial judge relied upon the presence of an unidentified vehicle as a possible explanation for the otherwise inexplicable use of the handbrake, the respondent's case depended almost entirely upon acceptance of key aspects of the evidence of Mr Michaels. No other witness saw the unidentified vehicle and Ms Cirino gave unequivocal evidence that there was no such vehicle involved. The other independent witness, Mr Collin was more cautious, but also denied seeing any other vehicle driving erratically or in a way which would explain the respondent's manoeuvre. It is convenient to deal first with Mr Michaels' evidence. (a) Carl Michaels 1. At the date of the accident Mr Michaels' age was 15 years, 9 months. He was a friend of the respondent and worked at the same place of employment. He was travelling home with him at the time of the accident. His statement, as recorded in the police officer's note book was as follows: "We were driving in [lane 2]. The guy in front slammed his brakes on hard. Khodr slammed his brakes hard. They didn't work properly so he slammed the handbrake on hard. We slipped, lost control plus hit the pole & that's all I remember." 1. In the Local Court hearing on 9 April 2001, Mr Michaels' evidence was more expansive. First, he gave evidence that there were "lots of cars" on the road and the traffic was "going slowly" which he said was unusual for that place and time. [2] He was then asked to describe what he saw and stated: [3] "Well as we were driving home on Stacey Street a little Swift, Barina, purpley bluey colour with black tinted windows, was flying past us, just flew past us, then it slowed back down and all – what he was trying to do, wanted to get to the far left side to Canterbury Road – ." 1. It was put to him that they were in lane 3, closest to the median strip, but he denied that. He said that the other car was "going at high speed" and "[h]e just cut in front of us – maybe – I don't know, I didn't see properly, but he clipped the side … of the car". [4] He confirmed that he had "felt like a little push on the side" before the other driver slammed the brakes on hard in front of them. [5] 2. In May 2008 Mr Michaels gave evidence in the District Court. He maintained his account of being in the middle lane when a car crossed in front of them, describing the colour of the other vehicle as "dark", amplified as "like purpley – purpley colour, orangey, almond". [6] This was a departure from his evidence in the Local Court that the vehicle was a "purple, bluey colour". He gave the following evidence-in-chief: [7] "Q. On the evening of the accident how would you describe the traffic around you? A. I didn't look around me I just – to me traffic was – was moving – flowing through. Q. You recall if there were vehicles in front? A. I didn't – I didn't look – I mean I didn't look around. Q. After Khodr had moved into the middle lane – A. Yes. Q. – did something happen? A. Yeah, while we moved into lane 2, that's the middle lane, a car flew right past us in lane 1 next to the median strip. … Q. The vehicle in lane 1 what did it do then? A. Where point of view it slowed down probably a – … Q. Well, you said that the vehicle slowed down. What did it do then? A. It just – it crossed us. Q. Before it crossed you did you notice anything? A. No. Q. Was there a blinker on? A. Nothing. Q. Was there any warning? A. No, no warnings. … Q. Apart from seeing anything did you feel anything? A. A bit of a nudge. Q. When you say a bit of a nudge, did you feel where it was – which part of the car was nudged? A. On the driver's side. Q. And after the nudge what happened? A. Kaled [sic] applied the brakes and the – the handbrake went up and to me everything went out of control. Q. Where was this other car when Khodr applied the brakes? A. In front of us. … Q. How close was it to the front of Khodr's car? A. Without applying the brakes we would have run into them – could have been that close." [8] 1. He was cross-examined as to his evidence of contact between the vehicles, on the basis that it was not mentioned in his statement to the police. [9] 2. There was a statement in evidence before Norton DCJ, given by Mr Michaels to the respondent's solicitors (probably taken in 2000, although the date was not fixed) which made no reference to there being contact between the two vehicles. It described the other vehicle as "light in colour". 3. In October 2012 Mr Michaels gave evidence before Sorby DCJ, in the aborted trial. In chief, he said that the car which overtook them had a loud exhaust and was "a modified vehicle". [10] He said that it was "travelling past fast beside us, and it's cut across us." He repeated his evidence that it had given their vehicle a nudge. [11] In cross-examination, he said that the nudge did not cause any disruption to the movement of their vehicle and that the other vehicle continued on. The following evidence was then given: [12] "Q. Then at some point … the vehicle in front braked. Is that the case? A. No. We braked. Q. I see. A. Yeah. Q. Did the vehicle in front ever brake? A. I wouldn't recall if it ever braked. Q. So you didn't see the lights of the vehicle in front, the brake lights flash on? A. No. No. Q. At any point? A. No." 1. In the most recent trial, before Norton DCJ, Mr Michaels gave brief evidence-in-chief, to the following effect: [13] "Q. Do you remember travelling along what's known as Stacey Street? A. Yes. Q. Do you remember how many lanes it was in each direction. A. Three lanes. Q. Do you remember just immediately before the incident occurred which lane you were travelling in? A. On the third lane, that'll be the median strip. Q. Then what happened? A. We moved to the second lane, that being the middle lane. Q. Can you remember anything about the speed you were doing particularly? A. It was average speed there, because usually there's a lot of traffic at that place. Q. Do you remember anything about the speed? A. No. Q. Then what do you recall occurred? A. A vehicle coming on the right-hand side, very fast, and has jumped in front of our lane – in front of us. Q. What occurred? A. Well, Khoda had to press the brakes." 1. The cross-examiner identified the lane nearest the median strip as "lane 1" and continued: [14] "Q. That immediately before the accident occurred you moved from that lane? A. From the number 1 lane? Q. Yes? A. Yes. Q. Right and it was in the process of moving from the number 1 lane closest to the median strip that the vehicle appeared to you to lose control? A. Yes. Q. Do you agree with that? A. Yes." 1. Mr Michaels agreed that he was expecting the respondent to drive through the lights at the Stacey Street intersection and to turn right a little further south on Fairford Road. [15] He was cross-examined about the statement given to the respondent's solicitor in which he had described the other vehicle as being "light in colour". Mr Michaels was also cross-examined about his evidence at the previous trial that the car which cut in front of them had not braked: he said that he could not recall whether it braked or not. [16] 2. Mr Michaels' evidence was challenged on the basis of a number of matters relevant to his general credit, as well as inconsistencies in the accounts he had given of the accident. The trial judge rejected the challenges with respect to his general credibility, in particular those matters relating to his change of name and failure to reveal that at earlier hearings, two prior convictions involving matters of dishonesty and alleged false particulars in an application for a credit card. Having given each matter consideration, the judge was entitled to treat them as of little or no weight in assessing the evidence given before her. The discrepancies in Mr Michaels' evidence as to the conduct of the unidentified vehicle were of more consequence and will be dealt with when the evidence of the other witnesses has been addressed. It should be noted, however, that the allegation contained in the statement of claim was that the unidentified vehicle "cut across the plaintiff's vehicle without warning" in circumstances where "the unidentified driver knew or ought to have known that it was unsafe to do so". [17] There was no allegation of contact between the vehicles, nor of braking excessively in front of the plaintiff's vehicle. (b) Suzette Cirino 1. Ms Cirino was travelling south on Fairford Road in the lane closest to the kerb, intending to make a left hand turn at the intersection. She also gave a statement to the police, gave evidence in the Local Court, at the two earlier District Court proceedings and before Norton DCJ. Her statement to the police was in the following terms: "I was driving in [lane 1]. I saw [the respondent's car] come from the outside lane. He swerved around me and looked like he was out of control. He clipped the power pole and spun and ended up where he is now. … He was going very fast." 1. In the Local Court, she said that she drove with her window down and that she heard that the engine of the car, becoming aware of it when it was "a car and a half, two cars away". [18] The noise was then coming "from behind me" and the car was in the lane closest to the median strip. She continued her account: "Then I looked to my right and I saw the car coming, first it was going straight and then all of a sudden just out of nowhere it turned across the middle lane. I broke [sic – braked] straight away … [h]e then came into my lane so across me, missing me by probably less than half a metre." 1. The cross-examiner suggested to Ms Cirino that what had attracted her attention was the screech of tyres, rather than the engine. She rejected that proposition. She did not agree that any recollection she had in February 2001 of events the previous June would have been better than her recollection in court two months later, but the cross-examiner persisted: [19] "Q. What you said in February is what happened, isn't it, you heard the screeching of tyres, you instinctively looked to your right to see where it was coming from, that's what happened, isn't it? A. As I just said before, to my recollection to this day I believe it was the motor, I looked and then the tyres." 1. Ms Cirino was also asked whether the traffic was not "quite busy", to which she said, "not in my general vicinity" and, when the question was repeated, "not in my direct area, no". [20] The cross-examiner continued: [21] "Q. See I'm going to suggest to you, Miss Cirino, that when you say that that yellow car was on the outside lane, the lane closest to the median strip, that's not the case at all, that he was in the central lane, the second lane, wasn't he? A. No. Q. I'm going to suggest to you that he was. You're sure about that then, are you? A. Yes. Q. And you're sure about that because you say you looked around and you heard his engine going, is that right, that's why you're sure, that's when you first noticed him, is it? A. Yes." 1. She was also cross-examined about the presence of other cars: [22] "Q. But there could have been other cars around you in that 2 second incident, couldn't there? A. Not directly around me, no. Q. Well I'm suggesting to you that there were and you would say that's wrong as well, would you? A. Correct." 1. Ms Cirino gave evidence to similar effect in the District Court in May 2008, including the following evidence: [23] "Q. Ms Cirino, in the whole of this event from the time you heard the revving and your attention was caught did you see any other car involved in this incident apart from the little yellow car? A. No. … Q. Did you see any other car involved in this dramatic incident apart from the little yellow car? A. No, I didn't." 1. In cross-examination she was pressed on what drew her attention to the respondent's car: [24] "Q. The first thing you're aware of was the sound of an engine. Is that right? A. An engine revving, yes. Q. It sounded like a hotted up car, did it? A. Yes. Q. It sounded like a car that had had modifications done to – A. Just accelerating at a high speed. Q. Yes, but it had that sort of hotted up sound about it. Do you agree with that? A. It was more that it was accelerating and revving that – that brought my attention." 1. The cross-examination continued: [25] "Q. But what directed your attention in that particular direction was the sound of an engine revving. That's true, isn't it? A. Yes. Q. At that stage you didn't know what it was? A. Well, I know it was the car. Q. You say it was the car. It might have been another car close by with its engine revving. Do you agree with that? A. No. Q. Why? A. Because when I looked to see there was only one car there. Q. You weren't so sure about that back in 2001, were you? A. I can't recall what I said. Q. You just didn't see any other car. You didn't observe any other car, did you? A. No, I didn't observe any other car. Q. Because you weren't paying particular attention to other traffic, is that right? A. Well, when I heard the revving that's when I looked to that car, yes. Q. You looked to a car that you saw was in the median strip. Is that right? A. Yes. Q. And all of a sudden that car speared across in front of you. Is that right? A. Yes. Q. You first noticed him when he was right on you, didn't you? A. Yeah, one or two car lengths behind. … Q. I'm going to suggest to you that there was another car present on the night but you just didn't register it, because you weren't paying particular attention to the traffic conditions you just didn't see that there was another car there, did you? A. No, there was – there was no other car there. Q. You see, you say there's no other car yet in your evidence in April 2001 you're not sure what's in the middle lane, are you? A. No, I said there was, if you read it again, but I didn't see another car." 1. Ms Cirino was called again in November 2012 at the aborted trial. She gave the following evidence in chief: [26] "Q. Were there any cars occupying that lane between your position and the position of the yellow car? A. No. … Q. Were you able to determine where the sound of the revving engine was coming from? A. It was coming from that car. Q. Were there any other cars around that car at that time? A. Not immediately around it, no. Q. When you say, "Not immediately," were there any cars immediately ahead of it in lane 3? A. No. Q. And you've already told us there were no cars in lane 2. A. No there's [sic] wasn't." 1. Ms Cirino also gave evidence before Norton DCJ. She was called by counsel for the plaintiff. Counsel led from her the following evidence: [27] "Q. You understand in the previous proceedings that it's been suggested to you that you might have been mistaken …. There may have been another vehicle involved but you didn't see it, do you understand that? A. I understand that. Q. And is it the situation that you are certain in your own mind there wasn't any other vehicle involved, is that correct? A. No, there isn't." 1. She was pressed as to whether she was telling the truth in April 2001 as to where cars were on the roadway ahead of her [28] and confirmed that she did. In cross-examination, after recounting the events involved in the incident, she was asked: [29] "Q. What, if anything, did you see of any other vehicle other than that one in the vicinity of this accident? A. No. There was no other vehicle." (c) Paul Collin 1. Mr Collin made a statement to police, but not until June 2004. While the delay was obviously significant, the statement gave every appearance of being carefully considered, with changes made to a typed document and initialled by Mr Collin. Like Ms Cirino, Mr Collin was in the kerbside lane, intending to turn left at the intersection, but some distance behind Ms Cirino. He said there was "a reasonable amount of traffic on the road", but it was travelling at between 70-80km/h and flowing. The statement continued: "4. The accident occurred approximately 80 to 100 metres ahead of my vehicle. … I would estimate that there were around six to eight cars between us, across the three southbound lanes. This meant that I did not have a clear view of the accident. 5. The car which was involved in the accident first caught my attention when I saw it suddenly spear across the lanes ahead in the traffic. The car went across the traffic at quite a sharp angle, much sharper than would be case if it was simply changing lanes. 6. The car was travelling in the far right lane at the time. 7. I didn't notice the car prior to the accident. 8. I have no idea what caused that vehicle to suddenly cut across the traffic. It did not look to me like any other cars were involved. At the time the vehicle speared across the lanes, there was nothing, to my knowledge, ahead in the traffic which would have caused the vehicle to have braked suddenly. The traffic in all lanes was flowing. There was no back to back traffic and I believe the traffic lights which were approximately to 80 to 100 metres ahead of the yellow sedan were green. Certainly, immediately after the accident, the traffic around us continued to flow through the intersection. … 16. I understand that the driver involved in the accident has indicated that a second vehicle was involved in the accident, and the second vehicle has been described as a small Suzuki Swift type car, either dark purple in colour or possibly white. I cannot recall whether any vehicles matching those descriptions were travelling in the vicinity of the vehicle involved in the accident at the time. 17. I can state that I did not see a second vehicle change lanes suddenly from the far right lane into the middle lane immediately prior to the accident, nor did I see any collision between the vehicle involved in the accident and any other vehicle. I do not recall seeing any other car driving erratically immediately prior to the accident. I was really surprised when the vehicle involved in the accident suddenly speared across the traffic ahead of me, for no apparent reason. It seemed to happen out of the blue." 1. Mr Collin gave evidence at the District Court trial in May 2008, some four years after he made his statement. He indicated in cross-examination that his statement was provided to a solicitor, he believed from Sparke Helmore. [30] (Sparke Helmore were the solicitors for the Nominal Defendant in this matter.) Mr Collin also described his memory of the incident as "very clear". [31] 2. Mr Collin was called at the second District Court hearing in November 2012. In the course of cross-examination the following exchange took place: [32] "Q. … I put this to you on the last occasion: 'There could have been a vehicle that swerved from the median lane across a vehicle in the middle lane. That's one flash. And then the vehicle in the middle lane being forced off to the left, that's another flash. That's right? That could've happened couldn't it,' I put to you, and you said 'I think that possibly could have because I don't recall, you know, seeing a particular colour vehicle or type of vehicle in these flashes.' A. I don't recall making a response that long. Q. I can assure you, if it has been correctly recorded by the shorthand reporter, that's what you said. A. Well, my recollection is that I simply said, 'It's possible but my' – I nearly turned to the judge and the end of my evidence to say that while I said it was possible, I didn't believe that's what happened. Unfortunately, I just wanted to leave at that point so – Q. No, because it's always impressionistic in these sorts of things and you were quite shocked yourself, weren't you? A. I was, yes. And the reason I believe it was only one vehicle was because there was no disturbance in the traffic, there was no debris in the middle lane. If someone had done that in front of me, I would have braked, I would have changed lanes, I would have done something. So I always thought it was one vehicle." 1. On each occasion that Mr Collin was called, he appears to have been led through his evidence and cross-examined on that evidence. Before Norton DCJ, he was not called, but his statement and the transcript of the evidence given on the three earlier occasions was tendered. There was, thus, no direct challenge to the accuracy of the statement made in June 2004. Assessment of the evidence 1. The trial judge was satisfied that neither Mr Michaels nor Ms Cirino was seeking to do other than give a truthful account of his or her perceptions. [33] The same would have to be accepted with respect to Mr Collin. There were limitations on the perceptions of each, arising from their different circumstances. Mr Collin was the farthest from the scene of the incident at the moment it occurred. Although the incident was recorded as occurring at 6.10pm, in winter, there was evidence that the sun had set one hour and 15 minutes earlier and that it was dark. There was also evidence that the street was well lit and no one gave evidence as to limits on visibility. 2. Ms Cirino was close to the accident, but the respondent's vehicle came from her right and from slightly behind her vehicle. Mr Michaels was in the respondent's vehicle, but gave various accounts as to what caused the respondent to lose control. That was not necessarily surprising as he was 15 years of age, was concussed in the accident, and, not being the driver, may have had a perception which was inaccurate. 3. The trial judge held: [34] "Viewing the evidence of Mr Michaels as a whole there is consistent evidence that the application of the handbrake caused the vehicle to go out of control, that there was another vehicle involved which caused the plaintiff to take action to avoid a collision and that vehicle did not stop after the accident." 1. Taking these three propositions in reverse order, the third, namely that the vehicle did not stop after the accident, assumes that there was a vehicle involved in the accident. As to the second, it may have been entirely correct that there was another vehicle "involved which caused the plaintiff to take action to avoid a collision", but the question is how that vehicle was involved. If the respondent's vehicle was closing on a slower vehicle in front of it at too great a speed, that would fit the description accepted by the trial judge. Whether one can accept Mr Michaels as providing evidence of a second vehicle which was at fault, depends on what he said that vehicle was doing. It will be necessary to return to that question. As to the first statement, it seems to be only partly correct to say that the application of the handbrake caused the vehicle to go out of control. The respondent himself accepted in his evidence, at an earlier hearing, that a handbrake should never be applied where a vehicle is moving at speed; it must follow that the respondent acted in a manner which he knew to be extremely dangerous or else the vehicle was already out of control when the handbrake was applied. 2. The trial judge also stated: [35] "While Mr Michaels evidence has been inconsistent on a number of points, it has been reasonably consistent that this event happened at about the same time the plaintiff moved from lane 3 to lane 2. It is accepted that the accident itself happened very quickly. What Ms Cirino and Mr Collin recall most vividly was the plaintiff's vehicle spearing or coming quickly towards lane one." 1. Before returning to Mr Michaels' evidence it is convenient to note the statement by the trial judge under the heading "Conclusions on credit of Mr Michaels": [36] "In all cases where the evidence differs from the evidence given in the original police statement I prefer the evidence in the original police statement. Where the evidence expands on the evidence given in the police statement it needs to be looked at with care." 1. It is by no means clear how this proposition was applied with respect to any of the witnesses, including Mr Michaels. If Mr Michaels' original police statement were to be given primary weight, then the claim should have failed because the claim as pleaded was entirely dependent on the unidentified vehicle cutting across the respondent's vehicle by crossing the lane, without indicating such an intention. The cause of the accident, according to his original police statement, was that "the guy in front slammed his brakes on hard." There was no reference to movement from lane 3, nor to another vehicle cutting in, let alone to the other vehicle "nudging" the respondent's vehicle. 2. Secondly, the trial judge set out [37] a significant part of the evidence given by Mr Michaels on November 2012 before Sorby DCJ. [38] After setting out the evidence that at no point did he see the brake lights of the vehicle in front flash on, the judge continued: "Those questions and answers do not amount to an unequivocal statement that the vehicle in front never braked. It has clearly always been part of Mr Michaels' evidence that after the event which caused the plaintiff to take evasive action the unidentified vehicle continued off down the road without stopping …." 1. The link between the first of these sentences and the second is obscure: for present purposes, the second sentence may be disregarded. With respect to the first sentence, although Mr Michaels said at one point "I wouldn't recall if it ever braked", [39] he was adamant (and one might think unequivocal) that he did not see the brake lights flash on. 2. There was a degree of implausibility about Mr Michaels' evidence that the car "which flew past" actually came into contact with the respondent's car; it is also unclear how, if the car was so close, it could have passed in front; if the car "flew past" it is unclear how it could have been so close in front of the respondent that he had to brake to avoid hitting it, and presumably brake to an extent which could not be achieved by using the foot brake. 3. There were further problems with Mr Michaels' evidence. The experts were agreed that the car had already veered to the left before the handbrake was applied. As the skid marks commenced in the middle of lane 2, the trial judge accepted that, consistently with Mr Michaels' evidence, "this event happened at about the same time the plaintiff moved from lane 3 to lane [2]." [40] That gave rise to a difficulty in understanding how another vehicle could have caused the evasive action. That is, unless the respondent's vehicle had been travelling for some time in lane 2, there was no room for a vehicle to overtake it in lane 3 and cut across in front of it. There was a concrete median strip alongside lane 3 and the overtaking must have commenced before the beginning of the tapering right hand turn lane. The trial judge noted [41] that the evidence of Ms Cirino and Mr Collin placed the respondent's vehicle in lane 3. The objective evidence of the skid marks beginning in the middle of lane 2 were, Mr Keramidas thought, consistent with the angle of the left hand steer which would have occurred prior to the application of the handbrake. Mr Johnston's evidence was non-committal as to the angle at which the vehicle entered lane 2. Faced with the difficulty of accommodating Mr Michaels' evidence that the unidentified vehicle overtook the respondent, the trial judge stated: [42] "Mr Keramidas did not conclude that Mr Michaels' version was inconceivable but rather that it was 'virtually impossible.' … I prefer the evidence of Mr Johnston that the left-hand steer need not have commenced in lane 3 and that the angle of steer cannot be calculated from the available evidence. I accept that the plaintiff's vehicle had been travelling in lane 3 and moved into lane two and then everything happened very rapidly thereafter." 1. The trial judge further concluded [43] that "unless the plaintiff's vehicle was entirely in lane 3 it was not impossible for there to be an overtaking vehicle which cut across in front of the plaintiff's vehicle from the right." 2. She then noted Mr Michaels was "very young" at the time of the accident; he had had "some experience with the police"; he had been unconscious for a period after the accident; and that, while it was not inconceivable that he could have made up the story of the unidentified vehicle, she found it "unlikely" that he had done so. [44] All that may be accepted: it disregards the fact that Mr Michaels' account to the police did not include any hint that an unidentified had cut across in front of the respondent. 3. The trial judge then noted that "the presence of the unidentified vehicle goes part way to explain the otherwise inexplicable application of the handbrake." [45] She reiterated that "[t]he most likely explanation for the application of the handbrake is that there was some sudden event in front of the plaintiff's vehicle that may well have commenced to his right which caused him to steer suddenly to the left and apply the handbrake." [46] The trial judge concluded: [47] "I therefore find on the balance of probabilities there was an unidentified vehicle. I find that that vehicle was just before [sic] the plaintiff applied the handbrake in front of the plaintiff's vehicle in lane [2]. I find it is likely that that vehicle had overtaken the plaintiff's vehicle while the plaintiff was moving from lane 3 to lane [2] and that events happened very quickly thereafter." 1. Of these conclusions it must be said that (a) Mr Michaels' account to the police supported no such story; (b) Ms Cirino and Mr Collin gave descriptions which, if accepted, left no time for a vehicle to overtake and pull in front of the respondent, (c) Mr Keramidas' opinion that the overtaking and cutting in theory was "virtually impossible" had to be rejected; and (d) Mr Michaels' evidence that the unidentified vehicle did not show braking lights had to be rejected. As has been noted, Mr Michaels' evidence of not seeing braking lights was rejected on the basis that it was "not … unequivocal", a reading of the evidence which is unsupportable. If Mr Collin and Ms Cirino were to be accepted, Mr Keramidas was correct and the attempt to distinguish between his conclusion that the account of Mr Michaels was "virtually impossible", but not "inconceivable", is mere pedantry. His assessment could only be rejected if the premise (despite, in his opinion, being supported by the objective evidence of the skid marks) was false, that is, the evidence of Ms Cirino and Mr Collin should not be accepted. Accordingly, it is necessary to return to that evidence. 2. With respect to Mr Collin, the trial judge described his statement as "of limited assistance" because it was made four years after the accident. The temporal element may be conceded; nevertheless, Mr Collin's statement was admitted as part of a joint tender bundle and he was not required to give oral evidence. His statement contained the proposition that the respondent's car "was travelling in the far right lane" at the time that "the vehicle speared across the lanes" and that he saw nothing to cause it to take that course. 3. As already noted, Ms Cirino's evidence was detailed, the subject of cross-examination before the trial judge and categorically inconsistent with Mr Michaels' account of a vehicle overtaking and cutting in in front of the respondent's car. The trial judge dealt with Ms Cirino's evidence in the following passages: [48] "It is quite clear Ms Cirino has no recall of seeing any vehicle braking suddenly in front of the plaintiff's vehicle. Ms Cirino's attention was attracted by the revving of the motor which was quickly followed by the screech of the tyres. … In the circumstances it is clear that her primary attention was directed towards the movement of the plaintiff's car as it was heading into her lane. It is not surprising that she does not recall seeing any vehicle in front of the plaintiff's vehicle prior to the plaintiff commencing to brake. … Mr Collin's recollection is that there were other vehicles in the vicinity of the plaintiff's vehicle which differs from Ms Cirino's evidence." 1. The thrust of Ms Cirino's evidence has been recounted above. As counsel for the appellant submitted, it is quite misleading to summarise her evidence as a lack of recollection as to there being an unidentified vehicle in front of the respondent's vehicle: her evidence was that there was no such vehicle. The supposed inconsistency between her evidence and that of Mr Collin is also inaccurate or incomplete. Mr Collin's evidence was that there was other traffic on the road, but he identified in his statement six to eight cars between him and the respondent's vehicle, which was approximately 80 to 100 metres ahead of him. He did not place any vehicles in the immediate vicinity of the respondent's vehicle: indeed, he expressly stated that it "did not look to me like any other cars were involved." 2. The term "involved" is anodyne: the presence of other vehicles on the road (apart from obstructing the vision of the witnesses) was immaterial unless there was a vehicle which was negligently driven in close proximity to the respondent. The trial judge recognised that element, dealing separately with the questions whether there was an unidentified vehicle and whether, having concluded that there was, it was driven negligently. However, the substance of the analysis all arose in considering the first question and the second element was largely resolved by the finding that there was not only an unidentified vehicle, but that it cut across in front of the respondent in the manner described by Mr Michaels. The compression of the two questions was consistent with the evidence of the witnesses: both Ms Cirino and Mr Collin, in stating that there was no other vehicle involved, clearly meant that there was no other vehicle being driven erratically. 3. It follows that, in order to reach the conclusion that there was such a vehicle, the trial judge had to reject Ms Cirino's affirmative evidence that there was not. That evidence was supported by Mr Collin, was consistent with Mr Michaels' first statement to the police and, accepting the experts, was at least consistent with the skid marks on the road (Mr Keramidis went further). The trial judge did not approach the matter in this way and no basis was suggested in this Court for rejecting that evidence. If it were not to be rejected out of hand, it had to be balanced against the inconsistent statements of Mr Michaels. The Court could not properly be satisfied on the balance of probabilities that selected aspects of Mr Michaels' evidence should be preferred. Accordingly, the Court should not have been satisfied that an unidentified vehicle cut across the respondent's vehicle without warning, forcing him to take evasive action. The claim against the Nominal Defendant should have been dismissed. Orders 1. The Court should make the following orders: (1) Allow the appeal and set aside the judgment of the District Court given on 25 March 2014. (2) In place of the orders of the District Court, (a) give judgment for the defendant, and (b) order that the plaintiff pay the defendant's costs of the proceedings. (3) Dismiss the cross-appeal. (4) Order that the respondent pay the appellant's costs in this Court. (5) Grant the respondent a certificate under the Suitor's Fund Act 1951 (NSW) with respect to his costs of the appeal. 1. WARD JA: I agree with Basten JA. 2. ADAMSON J: I agree with Basten JA. ********** Endnotes 1. Tcpt, 04/03/14, p 41 and Ex 1. 2. Tcpt, 09/04/01, p 27. 3. Ibid p 28. 4. Ibid p 29. 5. Ibid p 30. 6. Tcpt 20/05/08, pp 155-156. 7. Ibid, pp 155-157. 8. Parts of this evidence were repeated and confirmed in cross-examination, particularly the evidence that he was not looking around and did not know if there were vehicles in front, at pp 171 and 174. 9. Ibid, p 185. 10. Tcpt, 31/10/12, p 259. 11. Ibid, p 260. 12. Tcpt, 01/11/12, p 283. 13. Tcpt, 04/03/14, p 38. 14. Ibid, p 45. 15. Ibid, p 45. 16. Ibid, p 54. 17. Statement of claim, pars 2 and 9(a). 18. Tcpt, 09/04/01, pp 12-13. 19. Ibid, p 18. 20. Ibid, p 19. 21. Ibid, p 21. 22. Ibid, p 23. 23. Tcpt, 22/05/08, p 316. 24. Ibid, p 324. 25. Ibid, pp 327-329. 26. Tcpt, 06/11/12, pp 427-428. 27. Tcpt, 04/03/14, p 22. 28. Ibid, pp 28-29. 29. Ibid, p 30. 30. Tcpt, 21/05/08, p 294. 31. Ibid, p 298. 32. Tcpt, 06/11/12, pp 476-477. 33. Khoda Saleh v Nominal Defendant (unrep, Norton DCJ, 25 March 2014) at [80]. 34. Ibid, at [58]. 35. Ibid, at [91]. 36. Ibid, at [59]. 37. Ibid, at [56]. 38. Set out at [16] above. 39. See at [19] above. 40. DC judgment at [91]. 41. Ibid, at [88]. 42. Ibid, at [88]-[89]. 43. Ibid, at [92]. 44. Ibid, at [93]. 45. Ibid, at [94]. 46. Ibid, at [97]. 47. Ibid, at [98]. 48. Ibid, at [85]. 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 February 2015