Hamamdjian v Lipovac [2018] NSWDC 408

District Court New South Wales

Medium Neutral Citation: Hamamdjian v Lipovac [2018] NSWDC 408 Hearing dates: 8 – 12 October 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Civil Before: Sidis ADCJ Decision: (1) Verdict for the defendant. (2) The plaintiff is to pay the defendant's costs of the proceedings, as agreed or assessed. (3) The exhibits will be retained for 28 days. Catchwords: Personal injury; motor accident, liability, conflicting accounts of circumstances of the accident, credit, claims of embellishment and exaggeration, assessment. Legislation Cited: Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Plaintiff: Haig Hamamdjian Defendant: Mary Elizabeth Lipovac Representation: Counsel: Plaintiff: Mr M. Daley Defendant: Ms C. Allan

Solicitors: Plaintiff: Brydens Compensation Lawyers Defendant: Moray & Agnew File Number(s): 2015/00142705 Publication restriction: Nil

JUDGMENT 1. This matter concerns a collision that occurred at about 8.45am on 15 March 2013 between a motor scooter driven by the plaintiff and a car driven by the defendant. 2. The defendant challenged the plaintiff's account of the circumstances of the accident and his clams of injury and disability suffered as a result of the accident.

LIABILITY 1. The accident occurred at the intersection of Woodville Road with Parramatta Road and Church Street, Parramatta. Both the plaintiff and the defendant were travelling north on Woodville Road. At the intersection there were four traffic lanes in Woodville Road. One lane provided for a left turn only into Parramatta Road to the west. One lane provided for a right turn only into Parramatta Road to the east; this lane was referred to in the evidence as lane 1. The adjoining lane allowed for traffic to travel directly ahead onto Church Street or to turn right into Parramatta Road; this lane was referred to in evidence as lane 2. The remaining lane allowed for traffic to travel directly ahead onto Church Street. It was referred to as lane 3. 2. The plaintiff said that immediately prior to the accident he was travelling in lane 2. He stopped at traffic lights behind four cars and indicated his intention to turn right into Parramatta Road. The four cars travelled directly ahead when the lights turned to green. He moved into the intersection to make a right hand turn. As he was turning right a collision occurred between his motor scooter and the defendant's car. 3. The plaintiff's motor scooter impacted with the defendant's car at the front passenger's side wheel and the tyre exploded with a loud noise. The plaintiff noticed that the front wheel tyre was flat but did not know if there was any other damage to the defendant's car. 4. The plaintiff said his motor scooter was pushed to the opposite side of the intersection and he and the defendant pulled up in the centre of Church Street, in the area that he marked on Exhibit D. The defendant said she was sorry and told him she had to get to work. She then began to make telephone calls. 5. The defendant's account was different. She said that immediately before the accident she was travelling north in lane 2 on Woodville Road, intending to drive onto Church Street and proceed to Parramatta where she worked as a bank officer with Westpac. 6. She said that Woodville Road was two lanes wide to the point of it's intersection with Crescent Road. She stopped at the traffic lights at that intersection. At that point she was travelling in the kerbside lane. Traffic entering from Crescent Road slowed her path of travel when vehicles entered and crossed the traffic lanes to reach the right hand turn lanes into Parramatta Road. Traffic from that point proceeded slowly in a stop-start fashion. 7. The defendant said she remained in this lane, which became lane 2, when Woodville Road widened into four lanes. She stopped in lane 2 behind one other vehicle at the traffic lights at the intersection with Parramatta Road. 8. As she started to move forward when the lights turned to green she saw a motor scooter on the right hand side of her car. The driver struck the wing mirror on the left hand side of her car with his elbow, moving it forward, and the front wheel of his motor scooter impacted with her front wheel, breaking the air valve. The motor scooter became unbalanced and the plaintiff touched the side of her car and that of a vehicle in the adjoining lane 3. 9. The defendant said that after impact she stopped about one half of a car length behind the white line at the intersection. The plaintiff did not stop immediately. He pulled over to the left of the road. She then moved to the area in Church Street marked by the plaintiff on Exhibit D and the plaintiff followed her with his motor scooter to this area. 10. The defendant denied that she offered the plaintiff any apology. She said she had nothing to apologise for. She said she asked the plaintiff twice if he had been injured and if he wished her to call an ambulance or if he wanted a lift to see a doctor. The plaintiff said he was 'OK'. 11. The defendant's evidence was challenged to suggest that her recollection of the circumstances of the accident was flawed. 12. The defendant said she was familiar with road conditions at the intersection, having travelled through it from her home in Guildford to work in Parramatta on three to four days each week for 14 months prior to the accident. She rejected the proposition that traffic entering from Crescent Road forced her into lane 1 so that she needed to move back into lane 2 in order to travel onto Church Street. She said was that this was something a driver would not do: Unless you were stupidly driving, yes. You wouldn't be in that lane because you have cars constantly going into that lane, the second lane is turning right. This is half past 8 in the morning, traffic's - (T22.30) 1. She denied the proposition that she made no attempt to recover the excess of $600 that she paid when her car was repaired because she considered that she was responsible for the accident. 2. Similarly, it was put to her that she did not report to the accident to police because she believed that she was at fault. The defendant said that she spoke to her insurer immediately after the accident and was advised that it was not necessary to call the police if no party was injured. As noted, she inquired about the plaintiff's condition and he told her that he did not need assistance. 3. The police record (Exhibit Y) indicated that the defendant was cautioned at the time she provided a statement on 13 August 2013. It was put to the defendant that she was cautioned that she might be charged or given an infringement notice as a result of the accident. Her failure to remember this caution was said to have been another indication that she believed she was at fault. That the defendant did not remember receiving a caution in the terms put to her was unsurprising since the caution set out in the police record related to the failure to comply with the request to supply the name and home address of the driver rather than the commission of any driving offence. 4. The defendant's evidence that she moved only one half of a wheel length before impact was said to be improbable if she was in fact travelling at her estimated speed of 10 – 20 kmh. She said she told police she was travelling very slowly, after just starting to move. The police officer asked her to nominate a speed and she assumed a speed of 10 – 20 kmh. 5. There was much questioning about whether the plaintiff was filtering between traffic or merging into her lane. The defendant said he was travelling between her car and the vehicle immediately to her left. The defendant's attention was drawn to a Motor Vehicle Assessment Report of her insurer (Exhibit Z) where the following was recorded: I was driving north on Woodville Road in a 3 lane road and I was situated in the middle lane and all of a sudden on my left lane a scooter I believed tried to merge into my lane and didn't realise I was there and hit into me. 1. The defendant said she did not remember the precise terms of the information she supplied to the repairer. She thought she might have speculated that the plaintiff tried to merge. She maintained in evidence, however, that he did not merge. 2. In a statement made to police on 13 August 2013 the defendant said: I was driving North towards Parramatta on Woodville Road, I was stationary at the red set of lights cross of Crescent St, Granville. The lights turned green and I drove to the next set of lights which is a big intersection being Parramatta Rd, Church St and Woodville Road. I was in the middle lane of 3 lanes and the traffic was peak hour and I was travelling very slowly at about 10 – 20 kph. Whilst I was driving I never saw a scooter near me, it was bumper to bumper and I could only see cars around me. I'm fairly certain that the scooter was driving in between the cars because the traffic was so bad. I stayed in my lane and when the scooter pulled into my lane in front of my car he has collected the front left side of my wheel and the front left panel. I think his elbow collected my left mirror. We stopped and exchanged details. 1. These statements were relied upon by the plaintiff for the submission that the defendant made several attempts at her version of how the accident occurred, while the plaintiff was said to have been consistent throughout. 2. It was true that the defendant used words interchangeably to describe how the parties' vehicles came into contact, whether because the plaintiff filtered between cars and became unbalanced when his elbow struck her wing mirror, or whether he merged or pulled into her lane. However, at no stage did she accept that she travelled in lane 1. Her evidence on this point was consistent throughout. 3. This was not the case as far as the plaintiff was concerned. The clinical notes made at the time of treatment by Dr Tsia, ambulance officers and practitioners at Westmead Hospital record a number of accounts given by the plaintiff. The plaintiff was not cross-examined concerning these records but in none of them was there a suggestion that the defendant travelled in lane 1. 4. On 16 March 2013 the plaintiff signed a statement recorded in a police notebook as follows: I was turning right into Parramatta Road from Church Street. I was on the second lane from the right, both of these lanes turn right onto Parramatta Road. I was travelling somewhere between the 20 to 40 mark. As I was going around the corner I saw a colour coming up beside me on my right hand side. I'm not sure where this vehicle come from. The vehicles front left tyre hit the side of my motor bike where my foot was. I heard a bang, it whacked me and it moved me side wards with the bike. The vehicle stopped. We both met up and exchanged particulars. My bike was damaged. My right ankle elbow and shoulder hurt. I was out the front of a medical centre so I went in their (sic) to get checked. The medical centre called an ambulance and I was taken to Westmead Hospital. No broken bones. I received bruising and soreness with my elbow, ankle and shoulder. I have to return to the hospital on Monday for the results of all the xrays and other test they did. 1. The first claim that I was able to find in the evidence that the defendant moved straight ahead from a right turn lane and into plaintiff's path of travel was contained in the Personal Injury Claim Form (Exhibit H): I was in the centre lane to turn right. Other driver was in the right lane that must turn right. The other driver (Mary Lipovac) drove straight from the right lane colliding with my shoulder, head, right leg and scooter. Other driver proceeded to push my scooter onto the Parramatta side of Woodville Road hard enough to blow the front passenger side tyre. 1. There was some doubt about the date that the Personal Injury Claim Form was completed, namely whether that date was the 12 April, July or September 2013. In any event the plaintiff denied in very forceful terms that the signature appearing on the statutory declaration was his. The transcript from 65.4 read: Q. Does the back page have a signature on it? A. Yes, it does have a signature Q. And is that your signature? A. I believe that's not my signature. I believe that's a complete – if you have a look at all the other signature I've done previously, that's not my signature. That's – even that name that's been written is not my signature, so I'd love to know where that came from, please. And at 65.43: Q. You seem concerned that you don't know anything about this claim form, am I right? A. I'm concerned that that's not my signature? Q. Are you concerned that you don't know anything about this form? A. I'm concerned that that's not my signature. 1. This evidence left open the question of whether the description of the accident contained in the Personal Injury Claim Form was in fact provided by the plaintiff. I noted, however, that this description of the accident did not categorically place the defendant in Lane 1 and it was also inconsistent with the statement provided to police one day after the accident when his memory was fresh. 2. The evidence the plaintiff gave to the Court was substantially consistent with that contained in the police statement. The evidence commenced at Transcript 14.17: Q. What happened then? A. Then I just continued to turn right and as I was turning right I seen something from my right-hand side and I just hit this car that sort of had just jumped right in between my path and was turning right. It was, I had nowhere to go. Q. Was the car or had the car been in your lane? A. The car went into my lane, had to have come into my lane. I was turning right and I was just, I was making the turn. I was just making the turn and I got, and then as I was making the turn, like, as I was turning the car it placed itself there. It was like, she drove, she didn't want to turn right any more. (Objection) Q. Just tell us what you saw. A. Sorry. What I saw was I seen, I was going this way and I seen on the right-hand side just there, just a colour come past, it was a car and that was as I was leaving to just about to go around the corner and I struck her car. 1. In cross-examination, the plaintiff confirmed that the final paragraph of this extract from the transcript was correct (T183.32). He agreed that he struck the defendant's car with his motor scooter rather than, as claimed in many of the statements, that she struck him. Questioned on the matter of whether he made an assumption that the defendant was travelling in lane 1, the transcript proceeded (T182.16): Q. You didn't see her until-- A. I seen colour-- Q. --you saw her at the corner of your eye— A. I seen colour. Q. --as a colour? A. Yes. Q. And you didn't see her at all in the right hand lane did you, you've made an assumption about that haven't you? A. You're making so many assumptions, I'm actually trying to tell you what would have happened, your assumptions are just not common sense, that very close to common sense of what could have happened. Q. So you agree that that was an assumption of yours that she was in the right turn lane, don't you? A. No, no I— Q. -- because you didn't see her? A. I know for a fact that she was in the right turn lane, I know for a fact that she was in the right turn lane for a fact. I know that. 1. Establishing that the defendant travelled in lane 1 was central to the liability aspect of the plaintiff's claim. 2. The defendant at no stage departed from her contention that she was travelling in Lane 2 notwithstanding the matters raised with her in cross-examination to suggest that she provided inconsistent statements on other details. Whether she thought the plaintiff was filtering between vehicles or merging in to her lane was irrelevant in the light of her insistence that the collision occurred in lane 2 when the plaintiff travelled beside her car. 3. I found no other reason to reject the defendant's consistent claim that she was in lane 2. She was very familiar with the route upon which she travelled. She denied that she was forced into lane 1 by traffic entering from Crescent Street. Acceptance of the plaintiff's proposition that she was in lane 1 also involved accepting that the defendant waited until she reached the intersection to correct her situation and that her method of correcting her situation involved driving across a line of vehicles, including the plaintiff and his motor scooter whose intention to turn right had been indicated. 4. I could not, on the balance of probabilities and in the absence of clear and direct evidence, conclude that the defendant acted in such a foolhardy fashion. 5. Further, I could not overlook the relatively contemporaneous statement the plaintiff provided to the police and its coincidence with the evidence he gave to the court. 6. I concluded that the defendant's version of the circumstances of the accident was to be preferred and I found in the defendant's favour on the issue of liability.