Aukuso v Tahan

1. [1]

   MACFARLAN JA: I have had the advantage of reading Simpson AJA’s judgment in draft. I agree with her Honour’s conclusions and reasoning.

2. [2]

   MEAGHER JA: I have had the advantage of reading in draft the judgment of Simpson AJA. I agree with her Honour’s conclusions and proposed orders for the reasons she gives.

3. [3]

   SIMPSON AJA: The issue in this appeal concerns the liability of two drivers for a motor vehicle collision on 21 December 2011 on Wallgrove Road at Eastern Creek, as a result of which the respondent, Ms Hana Tahan, suffered personal injuries. The appellant, Taelese Aukuso, was the driver of one of the vehicles, a red Ford Falcon. Ms Tahan was the driver of the other vehicle, a black Toyota Prado. Ms Tahan brought proceedings in the District Court claiming damages for the personal injury she suffered, which she asserted were caused by the negligence of Mr Aukuso in the manner in which he controlled his vehicle. On 19 October 2017 Ashford ADCJ delivered judgment in favour of Ms Tahan, finding that the collision, and Ms Tahan’s injuries, were solely caused by the negligence of Mr Aukuso. She awarded damages in an agreed sum of $700,000: Tahan v Aukuso, unreported, District Court of NSW, 19 October 2017. She declined to attribute any contributory negligence to Ms Tahan.

4. [4]

   Mr Aukuso now appeals against that decision; he contends that Ms Tahan was solely responsible for the collision and that the judgment ought, accordingly, be set aside. Alternatively, he contends that, even if he were guilty of negligence in the management of his vehicle, Ms Tahan, by her negligence, contributed to her own injuries.

5. [5]

   By s 75A(5) of the Supreme Court Act 1970 the appeal is by way of rehearing. By subs (6) of s 75A, this Court has the powers and duties of the District Court to draw inferences, make findings of fact, and assess any damages to be awarded; and, by subs (10), to make any finding or assessment, give any judgment or make any order which ought to have been given or made in the proceedings at first instance. In doing so, the Court accords respect and weight to the conclusions of the primary judge, but nevertheless is obliged to give effect to its own independently reached conclusions: Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [25].

Background facts

1. [6]

   A good deal of the relevant factual background is not in dispute.

2. [7]

   In the afternoon of 21 December 2011, Ms Tahan celebrated her birthday at the home of her parents. She was accompanied by her three daughters, aged 6, 3½ and 2½. At about 9 pm the family, including Ms Tahan’s mother, Ms Imstessal Alahmed, left in the black Toyota Prado, a large 4-wheel drive vehicle, to travel to Ms Tahan’s home which was nearby. Ms Tahan drove onto the Great Western Highway and turned onto Wallgrove Road, driving in a southerly direction.

3. [8]

   At about the same time Mr Aukuso left his home to drive in the red Ford Falcon to his place of work. He drove west along the M4 motorway and turned onto Wallgrove Road to travel south. At the relevant time, Wallgrove Road consisted of two northbound and two southbound lanes. The speed limit was 70 kph. On the left was a shoulder, also referred to as a “breakdown lane”. A white “fog line” separated the shoulder from the lane. At one point, the road formed a T intersection with Wonderland Drive, which ran to the west. The intersection was controlled by traffic lights. At a point 200 metres north of the intersection, the western-most of the southbound lanes (which was referred to as lane 2) divided into two, one of which was a dedicated right turning lane into Wonderland Drive. From that point there are three southbound lanes.

4. [9]

   About 650 metres north of the Wonderland Drive intersection, Wallgrove Road intersects to the east with Interchange Drive, and, some distance further north, is an entrance from the M4.

5. [10]

   On the evening of 21 December a Hino street sweeper driven by Mr Stanley Smith was located 25 metres north of the Wonderland Drive intersection, partly on the shoulder of the eastern-most of the three southbound lanes and partly in that lane (referred to as lane 1), straddling the fog line. Mounted on top of the street sweeper were beacons and an arrow board, all fully illuminated. The street sweeper was travelling at a speed of about 5 kph.

6. [11]

   About 70 metres behind, and to the north of, the street sweeper was an escort (or “shadow”) vehicle, a utility driven by Ms Kathleen Nordsvan, which was wholly in lane 1 and travelling at approximately the same speed as the street sweeper. This vehicle was also equipped with beacons and various illuminated signs, including an arrow board, the purpose of which was to indicate to motorists in lane 1 that street sweeping work was under way in that lane, and to direct them to merge into lane 2.

7. [12]

   At about 9.10 pm both Mr Aukuso and Ms Tahan were travelling south.

8. [13]

   Based on expert evidence, the primary judge made a finding of fact, which is not challenged, that each was travelling at approximately 90 kph, notwithstanding the speed limit of 70 kph. Just where their respective vehicles were located is a matter of dispute. What is not in dispute is that the two vehicles collided. The point of impact was identified as in the centre of lane 1, at a point 60 metres north of the Wonderland Drive intersection and therefore 140 metres south of the commencement of the right turn lane, and 35 metres south of Ms Nordsvan’s escort vehicle. The collision involved the front driver’s side corner of Ms Tahan’s vehicle, and the front passenger side wheel and wheel arch of Mr Aukuso’s Falcon. The steering assembly of the Falcon collapsed, making the vehicle unmanageable. It continued for some distance, coming to a halt at a point beyond the intersection, and leaving a tyre mark from which the point of impact was determined. Ms Tahan’s vehicle veered to the left, struck the back of the street sweeper, and bounced back for a short distance.

9. [14]

   As a consequence of the collision, Ms Tahan’s mother and her 2 year old daughter, Layale, died. Her 6 year old daughter suffered spinal injuries, and her 3 year old daughter suffered catastrophic brain damage. Ms Tahan was herself injured, and was taken to Westmead Hospital where she remained as an in-patient for two weeks, being discharged on 6 January 2012.

10. [15]

    A number of witnesses were identified at the scene, or came forward following a radio program. They gave sometimes conflicting accounts of the collision, and what immediately preceded it.

11. [16]

    On the following day, 22 December 2011, Mr Aukuso and Ms Nordsvan took part in interviews with police which were electronically recorded. Mr Smith took part in a similar interview on 23 December. On 4 January 2012 Mr Yaseen Sattar, one of the witnesses, also took part in an electronically recorded interview.

12. [17]

    One of the witnesses identified at the scene was Mr Bruce Gorey, who was interviewed on 3 January 2012. Another was Mr John Amanuel, who declined to be interviewed or to make a formal statement, but who gave an account of what he had seen to a police officer, Senior Constable Trivett on 30 January 2012. Senior Constable Trivett recorded her recollection of what he had told her in a hand written statement.

13. [18]

    On 23 January 2012, after her discharge from hospital, Ms Tahan was interviewed by police; she was accompanied by her husband. That interview was also recorded.

14. [19]

    In July 2014 a Coronial Inquiry was conducted into the deaths of Ms Alahmed and Layale Tahan. Ms Nordsvan, Mr Smith, Mr Gorey, Mr Sattar, and Mr Amanuel all gave evidence. Neither Ms Tahan nor Mr Aukuso did so.

The proceedings in the District Court

1. [20]

   Ms Tahan’s claim was listed for hearing in the District Court commencing on 14 August 2017. By that time, Mr Aukuso’s whereabouts were unknown; there was evidence that suggested that he was being held in custody on Christmas Island, awaiting deportation. In any event, he was not available for the purpose of the proceedings, which were, on his behalf, conducted by the third party insurer of the Falcon that he was driving.

2. [21]

   Transcripts of the recorded interviews with police of Ms Tahan, Mr Aukuso, Ms Nordsvan, Mr Gorey and Mr Sattar, and of the evidence of those witnesses who gave evidence in the Coronial Inquiry, were in evidence. As a consequence, several accounts given by some witnesses were available to the primary judge. Each party retained a traffic reconstruction expert to report on the circumstances of the collision. Each provided a report, and ultimately they provided a joint report that identified their areas of agreement and disagreement. Both gave oral evidence, concurrently. For the purposes of the appeal it will be necessary to examine closely the various – and different – accounts of the events.

3. [22]

   Ms Tahan’s case as opened by senior counsel was simple. She asserted that she observed the arrow board on Ms Nordsvan’s vehicle, which she obeyed by diverging from lane 1 into lane 2, and that Mr Aukoso attempted to overtake her before the Wonderland Drive intersection by moving from lane 2 into the right turn lane and then back into lane 2.

4. [23]

   The defence case was also outlined to the primary judge at the commencement of the trial. It, too, was simple. It was that, for at least 100 metres before the collision, Mr Aukuso was travelling in lane 2, adjacent to but perhaps slightly in front of Ms Tahan’s vehicle, which was in lane 1; that when Ms Tahan saw the escort vehicle driven by Ms Nordsvan and it became necessary for her to merge into lane 2, she did so without slowing down to enable Mr Aukuso’s vehicle to pass, and that, as a result, her vehicle collided with Mr Aukuso’s Falcon. On that scenario, it was Mr Aukuso’s case that the entire liability for the collision lay with Ms Tahan.

The evidence

1. [24]

   Given the diametrically opposite nature of the positions adopted by the parties it is necessary to set out, in some detail, the accounts given by them and by the various witnesses. I will do that generally without comment at this stage.

2. [25]

   Ms Tahan was trapped in her vehicle for over an hour and was then taken to the Westmead Hospital. The progress notes indicate that she was seen by a doctor at 4.30 am, who recorded:

3. [26]

   Thereafter, Ms Tahan gave her account of the events, first in the recorded interview with police on 23 January 2012, and then in the trial.

4. [27]

   The interview took place some days after Ms Tahan’s discharge from hospital. Her husband, Billal Tahan, was present at the interview. On one occasion, when Ms Tahan was answering a question about the age of one of their daughters, he intervened to correct the answer she gave. She recounted the birthday party at her parents’ house, and turned to the drive on Wallgrove Road. She said that she was travelling in the left-hand lane (lane 1), and saw the street sweeper, which was on the side but partly in lane 1. She said that she activated her indicator to move into the right lane (lane 2), and:

5. [28]

   She was some distance from the street sweeper when she first saw it and tried to “hop into that right lane …”. She said that she was a careful driver and tended to remain below the speed limit, but did not give any estimate of the actual speed at which she was travelling.

6. [29]

   When asked to explain how she attempted to change lanes, she referred to her usual practice of looking in the rear view mirror, and, if she were “not happy”, looking to her side. She said that she put on her indicator and saw nobody in lane 2 and “that’s when I hopped in”. She said that she felt the bump when she was “half way … just like about half way [into lane 2]”. The bang she felt was from the back; she had no recollection of a bang from the front.

7. [30]

   After a number of other questions, Ms Tahan was asked to take her mind back to the street sweeper. She said she thought that it had a flashing yellow light, and:

8. [31]

   She was then asked what she thought caused the accident to which she replied:

9. [32]

   The evidence given by Ms Tahan in the trial was quite different. She said that when she entered Wallgrove Road she saw the red Falcon enter from the M4. She was ahead of him. She was travelling at 70 kph. She said she did not see the Falcon again. She was travelling in lane 1. She saw the flashing lights of Ms Nordsvan’s escort vehicle, also in lane 1, and, ahead of that, the street sweeper, which was also in lane 1. She said:

10. [33]

    She said that she was almost half way past the street sweeper when she heard “a massive thump” at the back of her vehicle.

11. [34]

    In cross-examination she maintained that she had not exceeded 70 kph. She also maintained that the collision had taken place at the rear of her vehicle. When asked about her answers in the police interview in which she said that she was either half way or about half way (into lane 2) she answered:

12. [35]

    She explained her answers to police by saying that, at the time of the interview, she was very confused and emotional.

13. [36]

    She denied that, for a distance of 100 metres, she had been travelling “side by side” with the red Falcon. She advanced a hypothesis that Mr Aukuso had been in the right turn lane, which explained why she had not seen him.

14. [37]

    Mr Aukuso’s first account of the events was given in his police interview on the day after the accident. He said:

15. [38]

    He said that what he meant by “the right lane” was the lane “next to the footpath”. He drew a diagram, which is not in evidence, but maintained that he was driving adjacent to the median strip. He said:

16. [39]

    He said that he had seen the arrow “but I was in the right lane”. He said he did not know where the car came from. He acknowledged that he was exceeding the speed limit by travelling at 80 kph and said that this was:

17. [40]

    He was asked about the right turn lane which he said he had not reached. He was asked whether there was a third lane at the point of impact and replied:

18. [41]

    He said that he saw the arrows (although it is not clear whether they were the arrows on the street sweeper, or the escort vehicle). He said he had no idea how long the 4-wheel drive vehicle had been beside him and he first became aware of it about 5 metres from the lights on the arrows. He said that the vehicles had not passed the arrow when the collision occurred. I extract in full the following questions and answers:

19. [42]

    Mr Aukuso was then asked to draw a second diagram, and in doing so, he said:

20. [43]

    Mr Aukuso was asked about Ms Nordsvan’s utility, to which he replied:

21. [44]

    He was then asked about Ms Tahan’s 4-wheel drive and said:

22. [45]

    On 6 August 2012 Mr Aukuso made a statement to an insurance assessor. At para 5, he denied having had any problems with police (although the evidence shows he has a lengthy criminal record). His account of the relevant events was given in four paragraphs, as follows:

23. [46]

    Ms Nordsvan has given her account of the events on five separate occasions.

24. [47]

    On the evening of the collision, Ms Nordsvan completed an “Incident Report Form”. Under the heading “Description of the Incident” she wrote:

25. [48]

    She completed a “Summary of Events” by again noting that the red car was in the turning lane, Ms Tahan’s vehicle in the middle lane, both speeding, and that the red car:

26. [49]

    Ms Nordsvan was asked to describe in her own words what she saw of the collision. She answered:

27. [50]

    She went on to describe her own vehicle, with the hazard lights, beacons and the yellow arrow board which was directing traffic to move to the right lane, and the street sweeper on the shoulder. They were located at a point on Wallgrove Road where the right turn lane to Wonderland Drive commenced. She first noticed the Falcon and the four-wheel drive when they were about 80 or 90 metres behind her.

28. [51]

    She saw only two vehicles approaching; the red car was in the right turning lane and the four-wheel drive was in the middle lane. She commented on the “excessive speed” of both vehicles, which she estimated at “well over 100 kph”.

29. [52]

    She said that she thought that the drivers were “buckies” or “hoons” racing each other and said:

30. [53]

    Both vehicles overtook hers and were about 20 metres ahead of her when “he’s collided with her … and sent her into Stan [Mr Smith].”

31. [54]

    She said:

32. [55]

    She said that there was only one collision:

33. [56]

    She was asked if she saw what happened to the driver of the Falcon after the collision, to which she replied:

34. [57]

    Ms Nordsvan’s third account was given in a statement apparently made for insurance purposes.

35. [58]

    She stated that she saw the street sweeper stop while Mr Smith alighted to pick up some rubbish from the road that could not be picked up by the brushes on the street sweeper. She also stopped. She said that she could hear “the roar of motors approaching from behind”, so loud that it startled her and she knew vehicles were speeding.

36. [59]

    Her statement continued:

37. [60]

    She again drew a diagram that showed the collision as having occurred at a point close to the Wallgrove Road / Wonderland Drive intersection, with the red Falcon crossing the line dividing the right turning lane from lane 2,and colliding with Ms Tahan’s vehicle in lane 2.

38. [61]

    Ms Nordsvan maintained her position that Mr Smith was out of the street sweeper picking up rubbish, and of how she became aware of the two speeding vehicles. She said that Mr Smith’s street sweeper was “virtually opposite Wonderland Drive” but “in a little bit.”

39. [62]

    She said:

40. [63]

    She repeated that the two vehicles were behind her when she first became aware of them, and she could see them in her side rear view mirror. They were side by side “[m]aybe 60 metres back”.

41. [64]

    She said again:

42. [65]

    She again estimated the speed at “well over” 100 kph and guessed it to be about 120-130 kph, or even more.

43. [66]

    The evidence given by Ms Nordsvan in the trial was substantially in accordance with her previous accounts. She said that she could hear the noise of cars driving fast and looked into her side mirrors. She saw a 4-wheel drive (which she thought was silver) in lane 2 and a red sedan in the far lane, the right turn lane. She said they were both parallel with each other, and as they came to the Wonderland Drive intersection the red sedan, instead of turning right, “came over” and “clipped the 4-wheel drive”. She had first seen them from “way further back” from her vehicle and they were travelling “side by side”. They remained “side by side all the way”.

44. [67]

    In cross-examination she was asked about the diagrams she had drawn that showed the collision as being close to the intersection and she confirmed that that was where it had occurred. She said that she saw no vehicles at all in lane 1; “they were all in lane 2 and 3”.

45. [68]

    She was asked her recollection of how far the vehicles had travelled past her vehicle. She said:

46. [69]

    She acceded to a proposition that when she said that the vehicle went into a “spin” she meant that it “actually rotated on its wheels”. The following questions and answers should be extracted in full:

47. [70]

    There was more cross-examination to similar effect.

48. [71]

    Much later in the cross-examination, it was put to Ms Nordsvan that the 4-wheel drive had not spun, but went into an arc to its left and collided with the street sweeper. She said:

49. [72]

    Mr Smith was interviewed by police two days after the collision. He said that he had started work at 8.30 pm on the evening of 21 December, road sweeping. He was travelling at 5 kph. His vehicle, like that of Ms Nordsvan, had beacons at front and rear, and an arrow board mounted on top. At 9.10 pm he was approaching the traffic lights at the Wonderland Drive intersection. His vehicle was half on the shoulder, half on lane 1. He did not see the collision. The first he knew of it was when he heard “one helluva bang”. The bang was when Ms Tahan’s vehicle hit the back of his street sweeper. He said he got out of the truck immediately and saw another vehicle (the red Falcon) going through the intersection. It was travelling in lane 2.

50. [73]

    The evidence given by Mr Smith in the Coronial Inquiry did not deviate from that of the account in his recorded interview.

51. [74]

    Mr Smith’s evidence in the trial was given by telephone link. Mr Smith confirmed that the answers he had given to police were truthful and accurate. In cross-examination he said that, from the time he commenced work, he had been in and out of the truck “probably ten or 12 times” to pick up larger pieces of material that the sweeper would not pick up. However, at the time the 4-wheel drive struck his vehicle he was seated in the street sweeper and moving at 5 kilometres per hour. In this respect, his evidence was at odds with that of Ms Nordsvan.

52. [75]

    It appears that Mr Amanuel was travelling south in lane 2 on Wallgrove Road, behind Mr Aukuso’s red Falcon. He saw the collision and assisted in releasing Ms Tahan’s 6 year old daughter from the 4-wheel drive. According to his evidence in the trial, police approached and challenged him about his having done so. He gave his name and licence details and left the scene. His first account was given when, on 30 January 2012, he responded to an invitation to attend the Mt Druitt Police Station for the purpose of interview. He declined to participate in a formal interview, but did give some information to Senior Constable Trivett, who later made a note of her recollection of the conversation. Senior Constable Trivett’s note includes the following:

53. [76]

    Mr Amanuel gave evidence in the Coronial Inquiry, where he was permitted to be known only as “Witness A”. He gave his evidence through an interpreter. He said that he was driving in the right hand lane. The transcript records the following:

54. [77]

    He then is recorded as saying:

55. [78]

    Mr Amanuel was asked about the speed at which the cars were travelling and replied:

56. [79]

    He then described seeing the street sweeper.

57. [80]

    In cross-examination he said that he was travelling at 50 to 60 kph when he first saw the two vehicles.

58. [81]

    Mr Amanuel’s evidence in the trial was given by telephone link and through an interpreter. The transcript records the following evidence:

59. [82]

    The transcript goes on to record:

60. [83]

    The interpreter expressed some difficulty in hearing the answer and asked Mr Amanuel to repeat it. The answer is recorded as:

61. [84]

    There was then some cross-examination about Mr Amanuel’s perceived reluctance to participate, to which it will be necessary to refer later in these reasons. When cross-examined about the events in question, Mr Amanuel adhered to the evidence he had given.

62. [85]

    Mr Gorey worked at a business in Wonderland Drive. He completed his shift at 9 pm and drove along Wonderland Drive to the intersection where he turned left into one of the northbound lanes of Wallgrove Road. He was therefore travelling in the opposite direction to Ms Tahan and Mr Aukuso.

63. [86]

    Mr Gorey was interviewed by police on 3 January 2012. He was asked to recount what he had seen on the evening of 21 December. His answer is recorded as follows:

64. [87]

    He said he was travelling in the northbound lane “closest to the gutter”, by which he meant the median strip. He thought that he had travelled “a good one hundred, two hundred yards up” Wallgrove Road at the time he saw the two vehicles near Interchange Drive, which, other evidence shows, is 400 metres from the Wonderland Drive intersection. He was sufficiently concerned by what he had observed to think “I hope they know that sweeper is there”. He thought that they were “going a bit quick”. A second or so later he saw the 4-wheel drive swerve to the right. He did not see or hear the impact, but saw “smoke and dust” which he took to be coming off the street sweeper.

65. [88]

    He thought that the Falcon was a “reddish” or “maroon” colour.

66. [89]

    He repeated on a number of occasions that the two vehicles were “side by side”, and said that the Falcon was in the right hand lane. He thought it might have been the noise of the vehicles that caught his attention and wondered if they were racing.

67. [90]

    In the Coronial Inquiry, the evidence Mr Gorey gave was consistent with what he had said in his interview. He said:

68. [91]

    Mr Gorey also gave evidence by telephone link, from Cairns, where he was holidaying.

69. [92]

    In his trial evidence in chief, Mr Gorey repeated that after turning into Wallgrove Road he had noticed the street sweeper and the escort vehicle, both of which had flashing lights on top, the escort vehicle with an arrow “pointing to the side”, by which he meant “the inside lane”, or lane 2. He then saw two cars heading south, one in each of the two southbound lanes. At the time he passed them “they were probably side by side”. His attention was drawn to the vehicles by the sound of the motors; he thought that they were “trying to get past each other”. He thought that the vehicles were probably “a good 30 metres behind the escort vehicle. He looked in his rear vision mirror and saw something he thought was dust coming off the street sweeper, and then turned onto the M4 and continued on his way. He did not see the impact.

70. [93]

    Mr Gorey did not take kindly to cross-examination, which he took to be challenging his veracity. Eventually, he said that he did not want to answer any more questions and, although the cross-examination continued, he did not give any further useful evidence.

71. [94]

    In 2011 Mr Sattar was employed as a security guard in the same complex as Mr Gorey. He left for the day at about the same time as Mr Gorey and turned left into Wallgrove Road, to travel north. He took part in a recorded interview with police on 4 January 2012, and gave evidence in the Coronial Inquiry, as well as in the trial.

72. [95]

    Mr Sattar said that he saw the street sweeper and the escort vehicle, in the “emergency breakdown lane”, the escort vehicle about a metre and a half or two metres from the street sweeper. The sweeper was half in the emergency break down lane and half in lane 1. The escort vehicle was behind the street sweeper, not in lane 1. He saw Mr Aukuso’s vehicle (which he incorrectly identified as a Commodore) in the “far right hand lane” (lane 2), travelling side by side with the 4-wheel drive, which was in the “inside lane” (lane 1). He noticed the vehicles travelling at speed from a distance of about 200 metres. He formed the impression that the “Commodore” was reluctant to give way to the 4-wheel drive which was merging into the right lane. He saw the 4-wheel drive collide with the street sweeper “[side] on” or “parallel”. He said nothing about seeing the collision between the 4-wheel drive and the Falcon.

73. [96]

    Mr Sattar said that he saw the two vehicles “take off” at the lights (although he did not identify which lights) and observed them at a distance of about 150 to 200 metres, gradually increasing their speed. It appeared to him that they were racing. They did not “come to a steady speed”, but accelerated. He said that the 4-wheel drive “ploughed into the street sweeper truck and there was a puff of smoke”. He again said nothing about the collision with the Falcon.

74. [97]

    Mr Sattar also gave his evidence by telephone link. When asked to describe what he saw, he said:

75. [98]

    The street sweeper was 100-150 metres from the intersection of Wonderland Drive. The escort vehicle was about 3 metres behind.

76. [99]

    He repeated that the vehicles were travelling side by side and that it looked as though the vehicle in the right lane (the Falcon) was reluctant to give way to the vehicle in the left-hand lane. He thought that they were travelling at a speed of between 80 and 90 kph. After the vehicles passed his vehicle, he saw that one had crashed into the street sweeper.

77. [100]

    Mr Tahan was not present at the scene, and could not give evidence about the events. He accompanied his wife to the police station on 23 January, and was present throughout the interview. The purpose of his evidence appears to have been to explain the discrepancy between what Ms Tahan said to police, and the evidence she gave in the trial. He said that at the time of the interview, she was “[v]ery confused, emotional, grieving, crying, in pain, everything.” In cross-examination he agreed that she was not confused “about what happened” but was not asked to and did not explain what he meant by that.

78. [101]

    He intervened in the interview at one point, to assist his wife with the age of Layale, but not otherwise, because there was no need to do so.

Expert evidence

1. [102]

   As mentioned above, each party retained an expert for the purpose of investigating the circumstances of the accident. Each expert provided a detailed report, and, ultimately, they provided a joint report which identified areas of agreement and areas of difference between them. Both gave oral evidence, concurrently.

2. [103]

   The main point of difference between the two was that Mr Keramidas, an engineer retained on behalf of Mr Aukuso, considered that there had been two impacts between the 4-wheel drive and the Falcon, perhaps as close in time as one second apart; Mr Johnston, the engineer retained on behalf of Ms Tahan, disagreed and thought there had been a single impact.

3. [104]

   The experts agreed that the speed of both vehicles was in the vicinity of 90 kph, and that the Falcon was travelling slightly faster than the 4-wheel drive. They agreed that the vehicles were travelling side by side, with the 4-wheel drive slightly ahead of the Falcon.

4. [105]

   They agreed that the point of impact was 60 metres before the Wonderland Drive intersection, in the centre of lane 2. In their oral evidence they agreed that “the instigating factor” was Ms Tahan changing lanes when the Ford was directly beside her.

5. [106]

   It is, however, material to note the conclusions expressed by Mr Johnston. He thought it likely that, when the Falcon impacted with the 4-wheel drive, the Falcon was travelling “in a general south-easterly direction”, and was returning to lane 2 from the right turning lane, with about half of the vehicle still in the turning lane.

6. [107]

   He expressed the opinion that the Falcon and the 4-wheel drive made initial contact only after the 4-wheel drive had completed the lane change from lane 1 to lane 2; and that the Falcon had probably closed on the rear of the 4-wheel drive as it was approaching Ms Nordsvan’s escort vehicle and was probably in Ms Tahan’s blind spot.

7. [108]

   Mr Keramidis did not comment on these opinions.

8. [109]

   The expert evidence, in the end, added little to the resolution, largely because the areas of disagreement between the experts were narrow, and of relatively little importance.

The issues at trial

1. [110]

   As the case was finally argued before the primary judge, resolution depended upon which of the competing accounts outlined above was accepted. On behalf of Ms Tahan, primary reliance was placed upon the versions given by Ms Nordsvan, and by Ms Tahan herself in her evidence in the trial (as distinct from the different version given by her in her recorded police interview). On behalf of Mr Aukuso, significant reliance was placed on Ms Tahan’s initial account, given to police, and that given by Mr Amanuel. Support was also drawn from the descriptions of events given by Mr Sattar and Mr Gorey. Senior Counsel for Mr Aukuso drew attention to a number of features of Ms Nordsvan’s evidence that were inconsistent with the evidence of other witnesses and that, in some cases, could not have been correct. He attacked Ms Nordsvan’s reliability, not her credibility. He also made a sustained, though somewhat muted, attack on the reliability of Ms Tahan’s trial evidence, pointing, for example, to the change in the versions she had given, to her insistence (contrary to the agreed estimates of speed made by the experts) that she had not reached, and certainly not exceeded, the speed limit, and that her vehicle had been hit from behind (a proposition contradicted by the damage to the vehicle in addition to the observations of witnesses).

The reasons of the primary judge

1. [111]

   The primary judge resolved the one, minor, issue between the experts, whether there was one collision or two between the vehicles, by accepting Mr Johnston’s view that only one collision had occurred. That finding has not been challenged.

2. [112]

   Ultimately, the primary judge accepted the evidence of Ms Tahan and Ms Nordsvan, and rejected that of Mr Amanuel and the other defence witnesses. She dealt with the discrepancy between Ms Tahan’s account to police and her oral evidence by noting that the earlier version, in which Ms Tahan said (more than once) that she was “half way” into lane 2 when the collision occurred, had been given at a time shortly after her discharge from hospital, that she had herself suffered serious injury, and that she was mentally traumatised by the deaths of her mother and 2 year old daughter, and the severe injuries to her two other daughters. She considered that, during the interview, Ms Tahan appeared “emotionally labile” (although it does not appear that any video footage of the interview was in evidence). She accepted the experts’ calculation of the speed of Ms Tahan’s vehicle, and that, therefore, her own estimate was inaccurate. She accepted that Ms Tahan saw the flashing lights of Ms Nordsvan’s vehicle, and knew that she would need to change lanes.

3. [113]

   She considered, contrary to the argument advanced on behalf of Mr Aukuso, that Ms Nordsvan was in the “best position of all witnesses to observe the events”, noting that her “job was to remain vigilant”. She considered Ms Nordsvan to be “a credible and reliable witness who did her best to the assist the Court.” She took into account the consistency of the accounts given by Ms Nordsvan over a period of time. She accepted that the diagrams drawn by Ms Nordsvan were not accurate in all respects but considered that this was explained by the fact that Ms Nordsvan was doing “her best to explain a dramatic and traumatic event that had occurred in close proximity to her.” She described the diagrams as an “approximation” and “not artistic masterpieces.”

4. [114]

   She expressly accepted Ms Nordsvan’s evidence “on the core matters” and preferred her evidence to that of Messrs Amanuel, Gorey and Sattar, and the version given by Mr Aukuso to police where there were inconsistencies.

5. [115]

   She gave some explanation of her rejection of the evidence of Mr Amanuel and Mr Gorey and Mr Sattar. She said that Mr Amanuel was “a reluctant and difficult witness”, whose evidence was that he did not want to be involved, and who claimed that he “couldn’t remember everything”. She noted that his initial account, given to Senior Constable Trivett, was not in his own words and not signed by him.

6. [116]

   She declined to place any reliance on Mr Gorey’s evidence, saying:

7. [117]

   She considered that Mr Sattar was a witness who was doing his best to assist the court, but that his recollections were imprecise. She found Mr Aukuso, who, as mentioned above, did not give evidence in the trial, not to be a reliable source of information.

8. [118]

   She accepted that, when Ms Tahan changed lanes, Mr Aukuso was driving in the right hand lane (that is, the right turning lane) and that (as he did not intend to turn right into Wonderland Drive) it was necessary that he veer into lane 2. She accepted that he attempted to overtake Ms Tahan’s vehicle “at a time they had just passed Ms Nordsvan’s vehicle”.

The appeal

1. [119]

   Fifteen grounds of appeal were pleaded. All assert error in the fact finding exercise undertaken by the primary judge. Grounds 1 to 7 assert error in the approach taken to the evidence of Ms Tahan; grounds 8 and 9 assert error in the approach taken to the evidence of Ms Nordsvan; grounds 10 to 13 assert error in the approach taken to the evidence of the various eye witnesses, notably Mr Amanuel, Mr Gorey and Mr Sattar; grounds 14 and 15 assert error in the failure to find contributory negligence on the part of Ms Tahan.

2. [120]

   A specific complaint was made of the primary judge’s rejection of the evidence of Mr Gorey and Mr Amanuel, on the basis that they were reluctant witnesses, and, in the case of Mr Gorey, “truculent”.

3. [121]

   Essentially, however, the appeal rests on the obligation of this Court, under s 75A of the Supreme Court Act, to “conduct a real review of the trial” and of the reasons of the primary judge for the decision reached: Fox v Percy. Due regard must be paid to the advantage of the primary judge having seen and heard the witnesses. That advantage is, in this case, somewhat diminished in relation to those witnesses (specifically, Messrs Gorey and Amanuel) who gave their evidence by telephone, Mr Amanuel through an interpreter. It is also relevant that, while the evidence given by the witnesses in the trial was important, each witness had given an account of his or her observations on at least one previous occasion, when events were fresh in their minds. With the exception of Ms Tahan, there was no marked departure from the original accounts given by any witness in his or her trial evidence. Further, except for Messrs Gorey and Amanuel, acceptance or rejection of their evidence did not depend upon demeanour based impressions. There was nothing to suggest that Mr Gorey was reluctant when he gave his initial account to police, nor in the Coronial Inquiry. His “truculence” emerged when he was cross-examined (for the second time) in the trial. But his version of events then given did not depart from that he had given on the two previous occasions. There was thus no valid reason to discount his evidence on the basis of his behaviour.

4. [122]

   Rejection of Mr Amanuel’s evidence was based upon a different consideration, his reluctance to become involved. He explained that reluctance by reference to what he perceived as hostility, or at least criticism, of him by police at the scene when he attempted to assist one of the children in the 4-wheel drive, and, later, by work commitments and a desire not to become involved. But I read nothing in the transcript of his trial evidence that suggests that he was doing other than attempting to recount the events as he had seen them. On the other hand, the transcript suggests that there may have been real questions about the quality of the interpretation of his evidence. Notwithstanding that, in my opinion the evidence of these witnesses should take its place alongside that of the other witnesses and be assessed accordingly.

5. [123]

   There were, broadly, two versions of events, although the two versions internally differed in detail. One version is that given by Ms Tahan and Ms Nordsvan that Ms Tahan was, by the time of the collision, travelling in lane 2, with Mr Aukuso in the right turning lane and that Mr Aukuso sought to move from that lane into lane 2. That version is supported by Mr Johnston. The other version, given by Mr Aukuso and various other witnesses, particularly Mr Amanuel, is that Mr Aukuso was travelling in lane 2, that Ms Tahan was in lane 1, but, at a point when, presumably, she saw the directional arrows on Ms Nordsvan’s vehicle, she attempted to merge into lane 2, in the path of Mr Aukuso’s vehicle.

6. [124]

   On appeal, a significant attack was made on the reliability of the evidence of both Ms Tahan and Ms Nordsvan. Ms Tahan was incorrect, it was said, on her estimate of speed (something accepted by the primary judge and not contested) and was travelling at a speed in excess of the speed limit; she was wrong in her insistence that she had been struck from behind; and she must have been wrong in her insistence that she had checked her rear view mirrors and had looked over her shoulder. Each of these may be accepted. I accept that that casts some doubt on the reliability of her evidence. Somewhat paradoxically, heavy reliance was placed on her account in the police interview, in which she also said that she had not been speeding, and had been struck from behind.

7. [125]

   Ms Nordsvan was, it was submitted, wrong in a number of respects:

8. [126]

   By contrast, it was submitted, there was broad overall consistency in the evidence of Messrs Amanuel, Gorey and Sattar, each of whom had the vehicles travelling “side by side” or parallel.

Conclusion

1. [127]

   With that rather lengthy prologue, my conclusions can be stated with relative brevity.

2. [128]

   At the outset, I observe that no two witnesses gave precisely the same account. Moreover, the relevant events happened in a very short space of time. Two of the witnesses (Mr Gorey and Mr Sattar) observed whatever they did observe from their rear-view mirrors, when at least part of their attention must have been focussed on the road ahead.

3. [129]

   This is not a case in which any one witness can be accepted as definitively describing what happened. Rather, it is necessary, from the whole of the evidence, to draw such inferences as best synthesise the various observations, taking into account their strengths and weaknesses.

4. [130]

   As mentioned above, much emphasis was placed on the initial account given by Ms Tahan, in which she said repeatedly that she was half way into lane 2. The reliability of her trial evidence was under attack, with reference being made to her estimate of speed, and her evidence that she had been struck from behind. But it is difficult to see why her initial account (which included having been struck from behind) should be taken to be any more reliable than her trial evidence, which is consistent with that of Ms Nordsvan. It was also submitted that, had she been “confused” when interviewed by police, her husband would have intervened to assist. That submission overlooks the important fact that Mr Tahan could not have assisted with any of the facts about the collision. When he said, in cross-examination, that his wife was not confused about “what happened”, he was almost certainly referring to the injuries and deaths occasioned.

5. [131]

   It was contended that, of all the witnesses, Mr Amanuel was best placed to observe what happened. While I accept that he was in a good position to make his observations, so also was Ms Nordsvan, whose vehicle was almost stationary, and whose job it was to make observations. Her version cannot be reconciled with that of Mr Amanuel. But Mr Amanuel’s version, and the account given by Ms Tahan in her police interview, cannot be reconciled with the objective facts, to which I will shortly come.

6. [132]

   There were also difficulties in Ms Nordsvan’s evidence, although not as significant as senior counsel would have. Some emphasis was placed on her description of Ms Tahan’s vehicle as having “spun” which, it was contended, could not be right, but no reference was made to her later evidence that she meant that it had “skidded”. The attack depended upon what Ms Nordsvan meant by “spinning”, which she later explained. Criticism was also made of her estimate of the speed of the vehicles, which was clearly not in accord with the ultimate conclusion.

7. [133]

   Given the various difficulties identified in assessing the evidence of the witnesses, it is necessary to look for indicators in the objective evidence. The key fact in this respect is the agreed point of impact – in the centre of lane 2, at a point well past (35 meters) Ms Nordsvan’s vehicle. For that to be the point of impact, Ms Tahan must have successfully negotiated the change of lane from lane 1 to lane 2 prior to the impact. That conclusion gives credence to the evidence of Ms Tahan and Ms Nordsvan, and undermines the evidence of the other witnesses.

8. [134]

   On appeal, senior counsel for Mr Aukuso sought to explain this critical fact by saying:

9. [135]

   Even if it is correct that Ms Nordsvan’s vehicle was so placed as to leave room for Ms Tahan’s vehicle to pass, that does not explain how it reached the centre of the lane before the collision – unless Mr Aukuso’s vehicle was well towards, if not in, the right turning lane.

10. [136]

    Senior counsel went on:

11. [137]

    The inferences that I draw from the evidence are as follows. At some point south of where the M4 joins Wallgrove Road, Mr Aukuso and Ms Tahan were travelling, approximately side by side, in lanes 2 and 1 respectively. That was before the commencement of the right turn lane. Each was driving at a dangerous speed, 20 kph above the applicable speed limit. Each saw Ms Nordsvan’s vehicle with its directional arrows. Ms Tahan complied with the arrow and merged into lane 2 (accounting for the “swerve” observed by Mr Gorey). Mr Aukuso swerved to the right and into the right turning lane (possibly to avoid the 4-wheel drive, or to permit Ms Tahan to complete the merge), but immediately swerved back into lane 2, where the collision occurred. It was Mr Aukuso’s attempt to return to lane 2 that caused the collision. This was negligent. The collision between these vehicles was relatively minor but caused Ms Tahan’s vehicle to bounce back and into the street sweeper. It was that collision that caused the major damage to the 4-wheel drive and the injuries to its occupants. The speed of both vehicles was a major factor in the severity of the consequences of the collision between the 4-wheel drive and the Falcon. Each has some responsibility for the collision.

12. [138]

    Senior counsel for Mr Aukuso urged that, if that were the accepted scenario, no blame could be attributed to his response because it was an instantaneous or reflexive, decision “in the agony of the moment”. That I do not accept. Mr Aukuso could have remained in the right turn lane, but that would have forced him to turn right into Wonderland Drive, diverting him from his intended destination, which was further along Wallgrove Road beyond the intersection. Moreover, it was accepted that neither driver applied the brakes, something any ordinary prudent driver would instinctively have done.

13. [139]

    I have concluded that the parties have equal responsibility. The damages awarded to Ms Tahan should therefore, in my opinion, be reduced by 50%.

14. [140]

    The orders I propose are: