Qui v Obeid

1. [1]

   GLEESON JA: I agree with Simpson AJA.

2. [2]

   PAYNE JA: I agree with Simpson AJA.

3. [3]

   SIMPSON AJA: On 9 October 2014 a vehicle being driven by the respondent, Mr Abdullah Obeid, collided with the rear of a vehicle being driven by the appellant, Ms Kylie Qui, in St Johns Road, Cabramatta. The appellant suffered injuries for which, by statement of claim filed in the District Court, she claimed damages under the Motor Accidents Compensation Act 1999 (NSW). She alleged that the collision, and her injuries, had been caused by the negligence of the respondent. On 12 July 2018 the primary judge dismissed the statement of claim, entered judgment for the respondent and ordered the appellant to pay the costs of the proceedings: Ms Kylie Qui v Mr Abdullah Obeid (District Court (NSW), 12 July 2018, unrep). Notwithstanding that he entered judgment for the respondent, the primary judge properly went on to assess the damages that would have been awarded had the appellant been successful. He quantified the damages as $317,373.51.

4. [4]

   The appellant now appeals against the orders. Neither party seeks to challenge the quantification of damages. Since the appeal therefore involves a matter at issue to the value of more than $100,000, there is no dispute that it is brought as of right: see Supreme Court Act 1970 (NSW), s 101(2)(r). The appeal is subject to the provisions of s 75A of the Supreme Court Act by which this Court may exercise the powers and duties of the District Court, including making findings of fact and drawing inferences.

Uncontroversial facts

1. [5]

   The following facts are uncontroversial.

2. [6]

   In the evening of 9 October 2014 the appellant, with her two daughters and two nieces, attended a family gathering at Number 10 St Johns Road, Cabramatta. St Johns Road runs generally east to west. It has two lanes in each direction, in one of which vehicles may be parked, leaving one lane in each direction clear for traffic. The applicable speed limit is 60 kilometres per hour. To the west St Johns Road intersects with the Cumberland Highway. Number 10 is on the southern side of St Johns Road, some distance to the east of the Cumberland Highway intersection. Photographs in evidence show that Number 10 St Johns Road is a two-storey block of home units, with a wide driveway running the length of the building, and parking spaces at the rear. Between the Cumberland Highway and the location of Number 10 St Johns Road is a roundabout. A second roundabout is to the east of Number 10.

3. [7]

   At about 9.45pm the appellant, with her daughters and her nieces, left the event. The appellant was driving her Toyota Camry. To get to her home it would be convenient to head in a westerly direction, towards the Cumberland Highway. But to take her nieces to their home in Cabramatta, as was her intention, the more convenient route was easterly.

4. [8]

   The appellant’s elder daughter, Wendy Nguyen (then aged 15), sat in the front passenger seat. Her younger daughter, Denise, sat in the centre of the rear seat, between the appellant’s two nieces.

5. [9]

   The respondent was travelling in his vehicle (a Nissan) east in St Johns Road. His vehicle collided with the rear driver’s side of the appellant’s Toyota. It is now uncontroversial that the collision took place in the northern (eastbound) traffic lane (that is, not the kerbside lane in which vehicles were parked). The collision forced the front of the Toyota into a tree on the northern kerb. Ambulance and police attended, and recorded information provided by various participants. However, police declined to make detailed enquiries at the scene because of the perceived condition of the occupants of the vehicles. The appellant and at least one of her daughters were taken to Fairfield Hospital.

The trial

1. [10]

   A major issue pursued in the trial concerned the location of the appellant’s vehicle prior to the collision, and the circumstance in which it came to be in the eastbound traffic lane. Initially, and, indeed, up to the time of trial, it was the appellant’s case that her car had been parked on the southern kerb of St Johns Road, facing west towards the Cumberland Highway, and that the respondent’s vehicle struck hers while the Toyota was stationary in the southern kerbside lane. That was what was alleged in the statement of claim. At the commencement of the trial, an amended statement of claim was filed in which the appellant reversed her position. She then alleged that her car was “parked along the kerb … or proceeding in an easterly direction …” when it was struck by the respondent’s vehicle. It was clearly implied that, if the car was parked, it was in the northern kerbside lane.

2. [11]

   Evidence, to some of which it will be necessary in due course to refer in some detail, was given by the appellant, her husband, her daughters, one of her nieces, and a police officer who attended the scene. Also in evidence were contemporaneous documents which recorded (or purported or were taken to have recorded) statements made by the appellant, her daughters and her nieces, and by the respondent. Reports were commissioned on each side from traffic engineers who examined the scene and expressed opinions about how the accident was likely to have occurred, and the location on the road where the vehicles came into collision. A joint report identifying areas of agreement and areas of contention was prepared. The experts gave concurrent oral evidence.

3. [12]

   The appellant’s evidence at trial was that her vehicle was stationary, having been parked in the kerbside lane on the northern side of St Johns Road facing in an easterly direction when it was struck by the respondent’s vehicle. The respondent denied that the appellant’s Toyota had been parked. His evidence in chief was that he was driving east in St Johns Road when, from the opposite (that is, southern) side of the road, the Toyota performed a U-turn in front of his Nissan. He turned the wheel to the right and applied the brakes but was not able to avoid the collision. Both experts agreed that the appellant’s version could not be correct, and that the point of impact was in the eastbound traffic lane.

4. [13]

   As will be seen in the narrative that follows, the primary judge was faced with wildly conflicting accounts of the circumstances immediately preceding the accident. Those accounts were given by the appellant, her daughter, one of her nieces, and by the respondent. In some cases, contradictory accounts were given at different times by the same witness, notably the appellant herself. There were also inconsistencies in the accounts given by the respondent. The expert evidence went some way to resolving the conflict (specifically and importantly, the location of the appellant’s vehicle when it was struck by the respondent’s vehicle), but other areas of dispute remained for determination.

5. [14]

   One significant issue for determination concerned the speed at which the respondent was travelling. It was the appellant’s case that the respondent was travelling at well in excess of the applicable speed limit, or, alternatively, that he failed to keep a proper lookout or both.

6. [15]

   The primary judge substantially accepted the respondent’s account. He was not satisfied that the appellant’s car had been parked on the northern side of the road. He was satisfied on the balance of probabilities that, at a time when the respondent was “in close proximity”, the appellant drove out of the driveway of Number 10 St Johns Road, on the southern side of that road, “swung” into the carriageway of the eastbound lane, and in doing so failed to see the respondent’s vehicle and thus caused his vehicle to collide with hers. In reaching that conclusion he expressly relied on statements made in the immediate aftermath of the collision by the appellant’s older daughter Wendy Nguyen, and the evidence of the respondent. He had earlier referred to additional records of statements made at the scene and thereafter.

7. [16]

   The primary judge did not make any objective finding about the speed at which the respondent was travelling.

The grounds of appeal

1. [17]

   Four grounds of appeal were identified. The first asserts error in the reliance by the primary judge on, and the weight he attributed to, records of statements said to have been made by the appellant and members of her family to medical personnel and police, in preference to evidence given orally by those witnesses at trial. The second ground asserts error in the acceptance by the primary judge of the evidence given by the respondent, which, it was contended, was “unreliable, contradictory and based on assumptions” made by him. The third ground asserts error in the specific finding that the appellant drove out of the driveway and turned in front of the respondent’s vehicle, such finding, it was said, being “against the weight of the evidence”. The fourth and final ground asserts error in the failure of the primary judge to give adequate consideration to the expert evidence.

2. [18]

   The respondent has filed a draft notice of (proposed) cross-appeal. He complains that the primary judge erred in failing to find contributory negligence on the part of the appellant. Such a finding would be necessary only if – contrary to the fact – the primary judge had accepted that the respondent had been negligent. Since contributory negligence was not pleaded in the defence, and not raised in lengthy – 46 closely typed pages – written submissions provided to the primary judge, the criticism seems more than a little unfair. However, senior counsel for the plaintiff very fairly accepted that the issue could (if necessary) be dealt with by this Court without the need for further evidence, and raised no objection to the respondent being granted leave to file an amended defence. That was done, and it may be taken that, should the appellant succeed in establishing that the respondent was negligent, the issue of contributory negligence is before this Court.

3. [19]

   The respondent has also filed a notice of contention, asserting that, for reasons other than those he gave, the primary judge correctly dismissed the appellant’s claim.

4. [20]

   Having regard to the grounds of appeal, it will be necessary to consider, in some detail, the various accounts recorded.

5. [21]

   The appeal books were in an unsatisfactory state. There was evidence that exhibits had been forwarded, by the District Court, to the appellant at a private address at which she no longer lived. They have not been retrieved. It seems that copies of a number, but not all, of the exhibits have been made available. The numbers assigned to those exhibits in the appeal book do not accord with the exhibit numbers to which the primary judge referred. An ambulance record (Exhibit 11) appears to be incomplete. A large proportion of the appeal books was taken up with medical and other reports relevant to the assessment of damages, which is not in issue in this appeal.

The evidence in detail

1. [22]

   (a) accounts given by the appellant

2. [23]

   (b) ambulance and hospital records

3. [24]

   (c) police records

4. [25]

   (d) accounts given by the respondent

5. [26]

   On 1 October 2015 the respondent lodged a claim for compensation for personal injury he had suffered in the accident. He gave a description of the accident as follows:

6. [27]

   A “picture” of the accident was drawn in the space provided. While it shows the “vehicle at fault” making a U-turn, it is otherwise difficult to relate it to any of the known circumstances. Given the language (“the claimant”) used in both the description of the accident and on the drawing, it seems likely that the diagram at least was drawn by somebody assisting the respondent (whose English is limited) with the completion of the form.

7. [28]

   (e) expert reports

8. [29]

   As noted above, both parties retained traffic engineers, who reconstructed the scene and expressed expert opinions about the circumstances of the collision. Not all of the reports are included in the appeal books.

9. [30]

   After some initial exchanges, the two experts provided a joint report. By that time they had reached agreement on significant areas previously in contest. Importantly, the expert retained on behalf of the appellant (Mr Jamieson) agreed that, contrary to his initial assumption, the collision could not have occurred as described by the appellant, and that the point of impact was in the northern, eastbound traffic lane. He also agreed with a diagrammatic representation made by Mr Keramidas, who was retained on behalf of the respondent, showing the appellant’s Toyota angled towards the north-east, the respondent’s Nissan striking the rear driver’s side. Both experts agreed that it was not possible to identify the precise angle of the vehicles at impact.

10. [31]

    The joint report contains the following:

11. [32]

    The areas of remaining disagreement do not appear to be relevant to the issues on appeal.

12. [33]

    (f) evidence in the trial

13. [34]

    The appellant gave her evidence partly through an interpreter. Her oral evidence departed significantly from her earlier accounts. It is appropriate to extract some passages from the transcript.

14. [35]

    In evidence in chief the appellant was asked about arriving at Number 10 St Johns Road and parking her vehicle. She said that she could not remember much about that. Although, in this respect, the transcript is difficult to follow, the appellant should be understood to have said that she parked her car on the northern kerb (that is, on the opposite side of the road to Number 10) and facing east. She was then asked about leaving the function and said:

15. [36]

    In cross-examination the appellant denied having told the paramedics that she had been reversing out of a driveway. But later she said that she did not know and could not remember whether she had been told by her daughters that she had been reversing out of the driveway. She was cross-examined about the diagram in the statement to the insurance assessor that depicted her car facing west. She said that she had made a guess as to where the vehicle was, because she did not know.

16. [37]

    Ms Wendy Nguyen gave evidence that, on their arrival at the function, the appellant parked the Toyota opposite Number 10 and that the group walked across the road, re-crossing the road when they left about 9.00pm. She could not recall whether or not she had any discussion with hospital staff about the accident. She was asked about the statement she made that was recorded by Constable Kafrouni which contained the contrary assertion, that the car had been parked facing the Cumberland Highway. She said that she had not read the statement before signing it. She was asked to explain how she had told Constable Kafrouni that the vehicle was facing the Cumberland Highway; she said that she was 15 years of age at the time and “I didn’t know, like, my roads, directions”. She then suggested that she might have been “misinterpreted”.

17. [38]

    Ms Denise Nguyen was 12 years of age at the time of the accident, 15 when giving evidence. She said that she recalled crossing St Johns Road when leaving the function, and she recalled the crash. She could not recall whether the appellant had started the ignition and did not recall if the car moved forward.

18. [39]

    The appellant’s niece, Ms Julie Pham, was called. She recalled leaving the function with the appellant’s group to walk to the car. She could not recall where the car was.

19. [40]

    The respondent also gave evidence partly through an interpreter.

20. [41]

    He said that he had travelled through a roundabout, driving at about 50 kilometres per hour. Between the roundabout and the point of the collision he was travelling at “50-55”.

21. [42]

    He gave the following evidence:

22. [43]

    In cross-examination the respondent gave the following evidence:

23. [44]

    The respondent was asked to, and did, identify on a diagram where his vehicle was on the road when he first saw the appellant’s vehicle. The diagram became Exhibit P, one of the exhibits which has been lost in the post.

24. [45]

    It is only necessary to note one aspect of the oral evidence of the experts. That concerns the calculation of the respondent’s speed immediately prior to the collision, a subject that arose at the very end of their evidence.

25. [46]

    Based on the respondent’s answers in cross-examination that he had had five seconds in which to react to the first appearance of the appellant’s car, and Exhibit P, on which the respondent had marked his location when he first saw the appellant’s car, Mr Keramidas calculated the speed at which his vehicle had been travelling as 129 kilometres per hour. Mr Jamieson was prepared to agree, although he thought that it was “high”.

The primary judgment

1. [47]

   The primary judge reviewed, in some detail, the evidence of the various accounts of the circumstances of the accident.

2. [48]

   The dispositive findings of the primary judge are to be found in two paragraphs of the judgment, as follows:

3. [49]

   Notwithstanding his express finding that the appellant had driven out of the driveway of Number 10 and “swung” right into the eastbound lane, the primary judge in the same paragraphs of the judgment – [56] and [57] – also held that the appellant attempted to complete a U-turn. There is an irreconcilable tension in those two findings.

The appeal

1. [50]

   The appellant seized upon the primary judge’s acceptance of the respondent as “sure and convincing in his evidence”. That assessment, it was contended, was not available in the light of the respondent’s consistent description of the appellant as having performed a U-turn. That could be contrasted with his first account, in which he asserted that the appellant’s car was coming from a driveway on his right.

2. [51]

   The reliance by the primary judge on statements attributed to the appellant’s daughter Wendy Nguyen was also attacked. First, it was argued, the ambulance and hospital records did not identify the source of the histories they noted. It was speculated that Wendy was that source. Second, even if she were the source, no weight could be attributed to her contemporaneous or near contemporaneous statements, given her age and the circumstances of the accident (that her mother was injured, and that she was also injured).

3. [52]

   In support of Ground 4, heavy reliance was placed on the reports, and the concurrent evidence, of the experts where the speed of the respondent’s vehicle was calculated as 129 kilometres per hour.

4. [53]

   With respect to speed, the written submissions adopted two alternative positions: first, it was contended that the respondent’s evidence that he was travelling at 55 kilometres per hour and observed the appellant’s vehicle five seconds before the accident should be accepted. The conclusion to be drawn from that was that he failed to keep a proper lookout. Alternatively, the submission pressed in oral argument was that the evidence of the experts of his speed at 129 kilometres per hour should be accepted. The conclusion to be drawn from that was that the speed was plainly excessive and prevented the respondent from reacting to the presence of the appellant.

5. [54]

   The respondent relied on the near contemporaneous and consistent accounts of the appellant and her daughter Wendy, and the early and consistent accounts of the respondent, all of which were to the effect that the appellant’s car came from the southern side of the road.

6. [55]

   On behalf of the respondent it was submitted that three alternative factual scenarios were open:

7. [56]

   Whichever is the correct alternative, it was argued, the appellant’s conduct left no opportunity for the respondent to avoid the collision.

Determination

1. [57]

   It is well established that findings of fact, such as those that are the basis for the primary judge’s conclusion, will not be disturbed on appeal unless they are shown to be wrong by “incontrovertible facts or uncontested testimony” or are “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43].

2. [58]

   Far from concluding that the primary judge’s findings of fact come within any of those descriptions, I am satisfied that they were correct. This is not to say that there are not some anomalies within the findings. For example, as mentioned above, the dispositive finding included two contradictory propositions, that the appellant drove out of the driveway of Number 10 St Johns Road, and that she undertook a U-turn into the eastbound lane.

3. [59]

   The primary judge made an explicit – and favourable – finding in relation to the credibility of the respondent. He forbore from making corresponding findings about the credibility of the appellant or her witnesses, favourable or unfavourable. Having regard to the contradictory accounts given by the appellant, however, it is inevitable that had any explicit findings been made, they would have reflected badly on, at least, the appellant’s reliability. The failures of her daughters’ and niece’s memories of any of the events is also unilluminating. Contrary to the submissions made on behalf of the appellant, in my opinion, scant weight, if any, should be accorded to their trial testimony. Determination of the factual matters surrounding the accident must be made by analysis of the probabilities, bearing in mind the favourable finding as to the respondent’s credibility and having regard to the objective evidence.

4. [60]

   It is not unimportant that all early accounts given by the appellant and her witnesses had her jointly commencing her journey from the southern side of the road. Whether that was from the driveway of Number 10, or from a parked position on the kerbside is of little, if any, importance. Whether she “swung” out from the driveway or attempted a U-turn from the kerb makes little difference; these matters scarcely deserve the time and attention paid to them. What was important was that the appellant’s vehicle came from the southern side of the road, and into the eastbound lane. The onus was on her to execute either manoeuvre with safety and having regard to the presence of other vehicles on the road.

5. [61]

   To the three potential scenarios identified by the respondent, a fourth, drawn from the ambulance and Fairfield Hospital records may be added. That is that the appellant’s vehicle reversed from the Number 10 driveway, across the westbound lane and into the eastbound traffic lane.

6. [62]

   On any of these four scenarios, in my opinion, the appellant must fail, unless she could succeed in establishing that the respondent was travelling at an excessive speed, or failed to keep a proper lookout.

7. [63]

   The most favourable scenario for the appellant is that advanced on her behalf at trial – that she pulled out from the northern kerb, into the eastbound traffic lane, and was struck by the respondent’s vehicle. (That is not entirely in accord with the appellant’s evidence, which maintained that she had not left the kerb.) It is, of course, the obligation of a motorist to ensure, before pulling out from a parked position into a traffic lane, that the manoeuvre can be effected with safety.

8. [64]

   In order to show that she had discharged that obligation, it would be necessary that the appellant establish that the speed of the respondent’s vehicle was such that she could not reasonably have been expected to see it (or, perhaps, that his headlights were not illuminated, but that was not suggested).

9. [65]

   In order to establish that the respondent’s speed was excessive, heavy reliance was placed upon the last-minute calculations made by Mr Keramidas during the dying minutes of the concurrent expert evidence. That calculation depended on the respondent’s evidence that he had had five seconds to observe and react to the appellant’s vehicle. In my opinion, no weight can be accorded to that assessment; when seen in context, it was made by the respondent in response to cross-examination in which he had said that “all of a sudden” the appellant made a U-turn in front of him. His assessment of speed was not a true assessment but an attempt to emphasise the urgency of the situation with which he was confronted.

10. [66]

    The respondent’s position at all times had been that he was driving at between 50 and 60 kilometres per hour. That evidence was never challenged in cross-examination. It was the estimate at which the two experts first arrived and agreed in their joint report. It has only now been challenged on the basis of an answer given by the respondent that could not fairly be taken as an informed estimate.

11. [67]

    The same applies to the appellant’s alternative argument, that the respondent had failed to keep a proper lookout. That, too, depended on the respondent’s estimate of speed and the time between his first observation of the appellant’s vehicle and the collision. It must be rejected for the same reasons.

12. [68]

    In my opinion the appellant has failed to provide any basis on which the findings of fact made by the primary judge should be disturbed. The appeal should be dismissed, as should the cross-appeal. It is unnecessary to deal with the notice of contention.

13. [69]

    The orders I propose are:

    1. (1)

       Appeal dismissed;

    2. (2)

       Cross-appeal dismissed;

    3. (3)

       Appellant to pay the respondent’s costs of the appeal.