Simoes v Kel Campbell Pty Ltd; Simoes v Moon

1. [1]

   McCOLL JA: I agree with Basten JA’s reasons and the orders his Honour proposes.

2. [2]

   BASTEN JA: Bestic Street, Rockdale runs west from the Grand Parade at Brighton-Le-Sands until it meets the Princes Highway. There is a major intersection some halfway along its length where it crosses West Botany Street. On the afternoon of Saturday, 20 December 2014 the applicant, Americo Nuno Simoes, had driven south past the airport and turned right into Bestic Street, heading west. Brian Vincent Moon was driving a petrol tanker north on West Botany Street. At the intersection of Bestic Street and West Botany Street the tanker collided with the passenger side of Mr Simoes’ vehicle. The intersection was controlled by traffic lights.

3. [3]

   On 5 February 2016 the owner of the prime mover, Kel Campbell Pty Ltd commenced proceedings against Mr Simoes in relation to the damage caused to the tanker. A defence was filed on 31 March 2016. On 23 June 2016 Mr Simoes commenced proceedings against Mr Moon claiming damages for personal injury.

4. [4]

   The claims were heard together by Judge Gibb. On 18 August 2017 Judge Gibb gave judgment in favour of Kel Campbell in the property damage claim in an amount of $71,542.77; she dismissed Mr Simoes’ personal injuries claim. The results turned on a finding that Mr Simoes had attempted to cross the intersection against a red light.

5. [5]

   On 16 November 2017 Mr Simoes filed notices of appeal in each matter. The property damage judgment being under $100,000, leave to appeal was required. [1]

6. [6]

   With respect to the personal injury claim, against the possibility that she had erred in dismissing the claim, the trial judge undertook an assessment of damages. In substance, she concluded that Mr Simoes had failed to establish any economic loss, or need for domestic assistance. It was common ground that he had no claim for non-economic loss. The judge also rejected his claim for future medical expenses. At the hearing of the proposed appeal, senior counsel appearing for Mr Simoes conceded that any claim for damages in the event that he was successful on liability would not exceed $50,000. This appeal also required leave.

7. [7]

   In the result, it was conceded that the notices of appeal were invalid, being filed without leave. A summons seeking leave to appeal was provided, out of time, in each matter. The proposed appeals encompassed the grounds in the notices of appeal. The hearing in this Court was treated as a concurrent hearing dealing with the issues of (a) an extension of time, (b) an application for leave to appeal and (c) the proposed appeal, in each matter.

8. [8]

   As there was a timely filing of the invalid notices of appeal, there was no prejudice to the respondents in the late filing of the summons in each matter seeking leave to appeal; it is appropriate to grant an extension of time in each matter. However, for the reasons given below, the proposed appeals would be dismissed in circumstances which are not such as to warrant a grant of leave to appeal in either matter. In each matter the summons seeking leave to appeal should be dismissed.

Factual findings

1. [9]

   Both Mr Simoes and Mr Moon gave evidence. Each was adamant that he entered the intersection on a green light. Both could not have been correct in that belief. The trial judge did not determine the circumstances of the accident on the basis that any witness was not telling the truth. Rather, she determined the case on the basis of the reliability of the evidence, which amounted to a powerful case that the applicant was wrong in suggesting that when he moved into the intersection he had a green light.

(a) evidence of tanker driver

1. [10]

   With respect to Mr Moon’s evidence, the judge noted his concession that his estimation of distances was unreliable, but said he was otherwise “an impressive witness.” [2] She said he was “direct and frank and made no attempt to dissemble or avoid at any point.” [3] The judge said he “was not shaken in the least about his recollection that he had a green light.” [4] There was no challenge to those findings.

(b) applicant’s evidence

1. [11]

   Mr Simoes in his evidence-in-chief described the accident in the following terms: [5]

2. [12]

   Mr Simoes had made prior statements inconsistent with this account. The first, made to his general practitioner, Dr Cawood, may have been of limited weight; the second, made to a police officer investigating the accident, contradicted his evidence in court and was likely to weigh heavily against his credibility. In his defence, he said that he was inebriated at the time that the officers visited him at home and took the statement. He called his partner, Ms Justine Surin, to confirm that he was not sober on the evening on which the police visited them.

(c) first proposed appeal ground

1. [13]

   The first proposed ground of appeal dealt with the manner in which the trial judge dealt with a statement recorded in the medical records of the applicant’s general practitioner, whom he visited seven days after the accident. The full record relevant to the accident was as follows:

2. [14]

   The first line of the record referred to a motor vehicle accident on Saturday, 20 December, which was correct. The final line, if it correctly recorded what the doctor was told, implied that the applicant was not, a few days after the accident, confident that he had entered the intersection on a green light and had been hit by a truck running a red light.

3. [15]

   It is commonly the case that limited reliance is placed on statements recorded in medical histories as to how a particular accident occurred. As explained in Container Terminals Australia Ltd v Huseyin [6] there are a range of reasons for taking that approach, including:

4. [16]

   The proposed ground of appeal complained that the trial judge observed no such “caution” in her approach to the medical records of 27 December 2014, despite acknowledging that the note had not been put to the applicant in cross-examination.

5. [17]

   To assess this complaint it is necessary to understand how the medical record was deployed at the trial. The applicant gave evidence that he had visited Dr Cawood at Darlinghurst Medical Centre a few days after the accident. He said nothing in his evidence-in-chief about the history taken by Dr Cawood.

6. [18]

   The cross-examination based on Dr Cawood’s note was limited to the absence of any record of many of the physical complaints which the applicant claimed to have suffered following the accident. The challenge to his account of entering the intersection on a green light instead focused on a second statement, namely one made to the police in April 2015. In submissions in this Court, counsel for Mr Moon noted that there had been no cross-examination about the final line in the record because the medical record had been tendered by the applicant himself.

7. [19]

   The same points were raised in the course of submissions at trial, set out by the trial judge in her reasons. Ms Kumar, appearing for Mr Moon, had submitted that the record revealed “another inconsistency” in the applicant’s evidence. Counsel for the applicant complained that there had been no cross-examination as to that point, but later conceded that, having tendered the records, he could not object to the defendant raising the issue as a matter going to reliability.

8. [20]

   The judge set out the evidence, the exchanges with counsel and continued: [7]

9. [21]

   There was no error in the judge treating this evidence as relevant to reliability in circumstances where the statement had been tendered without reservation or explanation by the applicant. There was, as the judge also noted, no suggestion that the applicant had been deliberately lying in his sworn testimony. The first ground identified no plausible error.

(d) second appeal ground

1. [22]

   The proposed appeals alleged a failure of the trial judge to advert to specific evidence given by an independent witness, Mr Paul Schofield. Mr Schofield was, at the time of the accident, stationary at the lights on the north side of the intersection, facing south down West Botany Street. He had stopped at a red light. Mr Moon had given evidence that as he entered the intersection, travelling north on West Botany Street, there was a green light in his favour and a green right-hand turn arrow allowing traffic to turn across in front of Mr Schofield into Bestic Street travelling east. The evidence that Mr Schofield had a red light was therefore consistent with the possibility that Mr Simoes was facing a green left-hand turn arrow and a red light preventing him going straight ahead. The judge noted that fact. [8] It was not a matter of great significance.

2. [23]

   Relevantly for present purposes, the second proposed ground complained that the judge had “ignored” the evidence of Mr Schofield, who had stopped after the accident and approached the applicant and heard him say repeatedly “I saw a green light.” That evidence, it was submitted, contradicted the judge’s finding that the applicant “now” (that is in giving evidence at the trial) believed he had a green light, implying that he did not hold that belief on earlier occasions.

3. [24]

   It is not apparent that any reliance was put on the evidence of Mr Schofield in the course of submissions at trial. (This Court was not taken to any reference as to how his evidence had been relied upon.) That it was not accorded significance by counsel for the applicant was understandable. It was true that at various stages Mr Simoes believed that he “saw” a green light. He told police that he saw a green light, but believed it was the call light on his iPhone. It is also likely that the left-hand turn arrow for his lane was green at the time he sought to cross the intersection. His evidence at trial was that “the light went green”, meaning the light which permitted him to proceed across the intersection. Speaking colloquially, he might have exclaimed, “I had a green light,” or “my light had turned green”. However, the statement, “I saw a green light”, as reported by Mr Schofield, was capable of bearing quite a different meaning. It was at best ambivalent for the applicant. The failure of the judge to place reliance upon it was of no significance. The second ground lacked substance.

(e) third appeal ground

1. [25]

   There was, the applicant noted, a red light camera at the intersection which was not activated when his vehicle entered the intersection. That was said to provide independent evidence to support the applicant’s account. He submitted that the trial judge had ignored that evidence.

2. [26]

   In fact, the evidence did not support such a complaint. The trial judge identified three factors indicating that the applicant was unreliable in his account. (The second concerned the use of the medical record and has already been addressed.) The first concerned the sequence and phasing of the traffic lights. That matter was explained in the judgment in the following terms: [9]

3. [27]

   Both Bestic Street and West Botany Street had two lanes in each direction. Mr Simoes was on the inside lane on Bestic Street, which had a left turn arrow separate from the round lights permitting vehicles to cross the intersection. As the judge noted, the westbound traffic signal on Bestic Street remained red for 35 seconds after the left turn arrow had changed to green. An officer from Roads and Maritime Services, Mr Paul Hayes, was asked whether the camera would capture a vehicle going through the red light and crossing the intersection from the inside lane which had a green left turn arrow. Mr Hayes stated: [10]

4. [28]

   Mr Hayes confirmed that evidence in cross-examination. The effect was that because Mr Simoes’ vehicle had stopped before he entered the intersection, he would have moved forward at less than 30kph, so that his attempt to cross the intersection would not to be recorded by the camera. Indeed, it is common sense that a red light camera must be programmed not to pick up vehicles that legitimately enter the intersection to turn left. The evidence was sufficient to explain why the applicant could enter the intersection against a red light, but not trigger the camera. Ground three lacked substance.

(f) fourth appeal ground

1. [29]

   The third matter relied upon by the trial judge affecting the reliability of the applicant’s account involved a statement made by the applicant to police on 11 April 2015. Police came to his home at about 9.20pm that evening and took a statement which was recorded by the officer in a police notebook. The answer given to the first question was consistent with the evidence he gave at trial. After giving his account, he was given a warning by police and further questions were asked:

2. [30]

   The applicant was cross-examined as to his answer to the second question, concerning the incoming call on his iPhone 4: [11]

3. [31]

   The cross-examiner also put the final admission of fault to the applicant asking: [12]

4. [32]

   The cross-examiner returned to the question of being informed that he had triggered the red light camera: [13]

5. [33]

   The trial judge assessed this evidence in the following terms: [14]

6. [34]

   The proposed grounds of appeal alleged that the evidence recorded in the police notebook should not have been admitted unless the judge was satisfied that the admission and its making were not influenced by “violent, oppressive, inhuman or degrading conduct” as provided in s 84(1)(a) of the Evidence Act 1995 (NSW).

7. [35]

   Apart from the fact that the evidence provided an inadequate basis for such an objection to admissibility, the trial transcript revealed that the police notebook with the statement of 11 April 2015 was admitted without objection. [15] In re-examination counsel for the applicant raised the issue of sobriety at the time of the police interview. As he sought to explore the circumstances of the signing in further detail the judge said, “if you’re going to allege duress it needs to be dealt with properly.” [16] Counsel said “I’m not suggesting duress”.

8. [36]

   The proposed grounds of appeal alleged that the applicant’s evidence as to the circumstances of the interview was “unchallenged”. It was given in cross-examination and was challenged. The judge, for unimpeached reasons, did not accept it. In these circumstances, the ground of appeal challenging the admission of the police notebook was without merit.

(g) fifth appeal ground

1. [37]

   The fifth proposed ground of appeal alleged error in failing to allow the applicant to adduce evidence from his de facto partner, Ms Surin. The evidence was to be directed to some unidentified aspect of the conversation between the applicant and the police officer “relevant as to the issue of the circumstances in which the admission contained in the police notebook statement was made.” It was alleged that the evidence was “clearly admissible under s 81(2) of the Evidence Act”.

2. [38]

   At the trial, Ms Surin gave evidence of two events. The first related to Mr Simoes’ state when he returned home after the accident on 20 December 2014; the second related to the visit of the police officers in April 2015. Ms Surin was asked where she and the applicant had been on the latter occasion and how much the applicant had had to drink. The following exchange then took place (Mr Thompson being counsel for Mr Simoes): [17]

3. [39]

   This exchange was uninstructive. It was curious that, having been told that the witness was present only during “parts of conversations”, counsel (who had called her) then asked her if she had been present during the whole of the conversation. The judge’s intervention appeared to assume that she knew where the questioning was going. This Court was invited to assume that Ms Surin was then going to be asked questions about what the officer had said to Mr Simoes before the statement was recorded, and was indicating an intention to disallow such evidence unless the officer were to be called. Even more curiously, counsel accepted the implication that he would not be allowed to proceed to adduce such evidence without seeking to explain what the evidence would be, or why it was admissible. There was no material before this Court revealing what questions Ms Surin might have been asked and what answers she might have given had the matter proceeded.

4. [40]

   The apparent curiosity of this exchange is explained, however, when it is read in context. The relevant context, which has already been adverted to, involved the following sequence of events: (i) the applicant had given evidence of his conversation with Constable Ferguson during the course of the 33 minute interview (Tcpt, pp 75-78); (ii) the statement in the police notebook had been admitted without objection (Tcpt, p 81); (iii) counsel for the applicant had attempted to raise further matters in re-examination, but denied he was seeking to allege duress on the part of the officer (Tcpt, pp 84-85); (iv) the further questions had not been stopped but had continued and had been the subject of further cross-examination (Tcpt, p 86); (v) immediately following the end of the cross-examination Ms Surin was called (Tcpt, p 87) and (vi) the exchange which is set out above then occurred (Tcpt, p 90). All that occurred within a reasonably short period, as the sequence of the transcript references shows. Without knowing precisely what evidence Ms Surin would have given it is impossible to conclude that counsel appearing for the applicant was under any misapprehension as to what the judge had in mind, or that the applicant suffered any miscarriage of justice by his counsel’s ready capitulation. (It is to be recalled that Ms Surin had categorically contradicted the applicant as to the prior events of the evening.)

(h) other evidence

1. [41]

   The remaining evidence was that of a Mr King. Mr King was an independent witness. He had been driving west on Bestic Street, behind the applicant. He came to a halt when approaching West Botany Street because he said “we had a red light.” [18] He was then taken to the moment of the accident. He said that he heard a “thump or crashing noise” but that his vision was blocked by cars between him and the applicant’s vehicle. He believed that there were three cars in front of him when he came to a halt, indicating at least two cars between him and the applicant. [19] Having indicated that he heard the sound of the impact, his evidence continued:

2. [42]

   In cross-examination it was put to Mr King that his attention was focused on the brake lights of the car immediately in front of him and not on the traffic lights. He was asked if there was a chance that the lights had turned green but he had not noticed. He accepted that it was a possibility. [20]

3. [43]

   The trial judge placed weight on Mr King’s evidence. He was a coach driver by occupation; he was independent of both parties; he was familiar with the intersection because he travelled to and from work along Bestic Street on a daily basis. [21] The judge summarised the evidence in the following terms, noting that Mr King was happy to concede “the possibility” that he did not observe the lights change for a second or two: [22]

4. [44]

   There was no ground of appeal challenging the reliance placed by the trial judge on Mr King’s evidence.

Conclusion

1. [45]

   The proposed notice of appeal in each matter contained five grounds relating to liability. For the reasons set out above, the grounds were without merit. Whether taken individually or in combination, they did not support an arguable case that there had been a miscarriage. The cumulative effect of the evidence provided ample support for a finding that the applicant was in the wrong and had proceeded across the intersection in defiance of a red traffic light.

2. [46]

   The applications for leave to appeal in both matters should be dismissed. The applicant must pay the respondent’s costs in each matter.

3. [47]

   LONERGAN J: I agree with Basten JA.