Aukuso v Tahan

The proceedings in the District Court

1. 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. 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. 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. 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. 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.

Ms Tahan

1. 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: "28 yo [female] High speed MVA w/2 fatalities. Events: At approx. 21.30 patient (driver) clipped the side of a car and hit a stationary wagon truck. …". The source of this information does not appear.
2. 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.

(i) interview with police: 23 January 2012

1. 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: "… I remember I was probably either halfway or almost halfway and I just felt like a massive bang, and then I felt … I just, I was like just numb all over …".
2. 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.
3. 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.
4. 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: "…I put my blinker, you know, and wanted to take the right lane 'cause, but I can't remember correctly how, how um, far I was to it, you know, or how close, but I remember not, me, me not being very close, you know, 'cause eventually the orange signs were there and I remember me seeing that, you know."
5. She was then asked what she thought caused the accident to which she replied: "I don't know. I just tell, I just tell my husband like, because I know, I, I, well, I remember me anyway looking and not seeing um, any car, you know … And I tell you, maybe it was speeding, maybe it was like just, you know, just ran me up or, I don't know … Maybe, maybe, sometimes I say to myself, you know, when I was half way through that half lane maybe, you know, me, but I remember me fully looking and … maybe not seen it properly, but I just remember me seeing nothing at all, and I remember when I was driving, there was no cars beside me, like that road was clear."

(ii) trial evidence: 15 August 2017

1. 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: "I then put my blinker on and went into the right lane."
2. She said that she was almost half way past the street sweeper when she heard "a massive thump" at the back of her vehicle.
3. 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: "No, I was all the way in the right lane." She said that she was "100 %" sure of this.
4. She explained her answers to police by saying that, at the time of the interview, she was very confused and emotional.
5. 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.

(i) interview with police: 22 December 2011

1. Mr Aukuso's first account of the events was given in his police interview on the day after the accident. He said: ".. I was, I was driving in the right lane and I was, and I was listen my music, my ah, Jet's music and I, I … on the, on my lane and … I was focussed, I was going straight to my lane. And then I tried, I didn't look around. All, all I see was ah, the car on the side. I just move my head and then straight and I, all I hear the cars bang in my car and ah, when the car bang in my car and the cars go slowly like this, the slide not .. sliding and I put the car on the left side, yeah."
2. 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: "And then I just, you know, when soon that car was something, I heard some bang and the car roll like this, just rolled to the other, on the left side and I, I … I look I didn't see any car and I get out and a man was running to me …".
3. 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: "Because I was rushed to go to work." He was not running late but was anxious to get to work to have coffee and talk with his workmates. His workplace was further up Wallgrove Road. He said: "I was in my right lane. I just go straight in my lane."
4. 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: "I think it was a, there's a second, there was, there's a … I think but this car I think he tried to, this car I think tried to take it over, I think the woman, that she tried to take it over. And that's …. Bang and I, and the car were sliding. Yeah. I think … back there that's where the, the accident."
5. 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: "Q 121: So when you stopped your car where was the arrow then, was it behind you or in front of you? A: It was in front. It happened before. Q. 122: Yes. A: Yeah. Q. 123: It happened before the arrow you're saying but when, when your car pulled over and stopped - A: Yeah. Q. 123: -- was the arrow still in front of you or behind you? A: Behind me. Q 124: And how far behind you was it? A: Because, because I, because the car, I let the car go. I didn't stop the car. I let the car go. I let the car go and then, you know, I, and the car went bang, the car go and then it slide and --- Q. 125: Why, why didn't you stop the car? A: Because I was, I don't know what I'm doing. Yeah. I was, you know, where is the car and … was because … I try to stop the car quick I think the car was rolling, was rolling … hit this car my feet … and then the car slide and I still holding the thing."
6. Mr Aukuso was then asked to draw a second diagram, and in doing so, he said: "Q 285: … A: This … now … when I come I take right lane and then up there I saw the car … going straight, you know, I saw the car was drive past me and I … so it happened on top here and I look the car wasn't ah, there it was me there and one minute bang. And this one go there and I go there in front of the truck. Yeah.
7. Mr Aukuso was asked about Ms Nordsvan's utility, to which he replied: "A; Yeah, I saw a car, I saw a car but I didn't see the sign. I saw a car, a work car but I saw they park on the left side. I saw they park on the left side … I saw only the arrow. That's all I saw. And then … come from there and then this happen and then bang and then I going …".
8. He was then asked about Ms Tahan's 4-wheel drive and said: "See now, yeah, that's now I remember. Yeah. Remember when I said to you before I think it was … when I was, four-wheel drive was there … come past me and I was there, you know. And I, I saw the car in front of me. I didn't, when I drive and I look back the car on the left side but … and then boom."

(ii) statement to insurance investigator: 6 August 2012

1. 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: "9. I was at home that afternoon and night, having a good sleep and generally relaxing. I didn't consume alcohol or take any illicit drugs, before I left for work alone in the Ford Utility [sic]. I drove west along the M4 motorway and turned left of it at Wallgrove Road lights to head south along that road to go to work. 10. I wasn't behind in my starting time. Traffic was light and fine night weather with good street lighting. I drove in the centre lane, closest to the concrete median strip and travelled at about 80 kph. I was wearing my seatbelt with my music on but not too loud to distract me. 11. I didn't see any cars around me in that short distance towards the first set of traffic lights. However, when I was about twenty to fifty metres from them, I suddenly saw a car draw up alongside of mine on the passenger side. It drew directly beside mine and I still looked ahead as I had a short distance still to go, but then suddenly I felt a heavy knock to the passenger side of my car. 12. I still had control of my car even though it seemed to force me over into the other lane being the left lane, closest to the gutter and I looked straight away to my left and right but couldn't see the other car."

Kathleen Nordsvan

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

(i) Incident Report: 21 December 2011

1. On the evening of the collision, Ms Nordsvan completed an "Incident Report Form". Under the heading "Description of the Incident" she wrote: "Red Car + 4WD speeding southbound. Red car hit and sideswiped 4WD which then hit roadsweeper. Red falcon continued speeding off….". She drew a diagram to illustrate her account. The diagram showed the collision as having occurred close to the intersection of Wallgrove Road and Wonderland Drive. She noted: "Red car in ® turning lane."
2. 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: "… hit and swiped 4WD which hit the sweeper truck with great force".

(ii) interview with police: 22 December 2011

1. Ms Nordsvan was asked to describe in her own words what she saw of the collision. She answered: "OK. Ah, You had the four-wheel drive in the middle lane, you had the red car, a red sedan in the arrow, right-hand arrow turning lane. Both came down Wallgrove Road at excessive speeds. The ah, red car, like I said they were both going parallel all the way up like they were racing each other and then the red car's came over clipping, side swiping the front end, front guard, front door of the driver's side and he, hit her, she's just gone straight into the road sweeper and he's just kept going."
2. 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.
3. 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".
4. She said that she thought that the drivers were "buckies" or "hoons" racing each other and said: "And then I seen him hit her and ah - ".
5. 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]."
6. She said: "He's pulled straight over hitting her front guard and front door … um, sort like, in a sideswipe motion."
7. She said that there was only one collision: "… he's hit her and then they've separated."
8. She was asked if she saw what happened to the driver of the Falcon after the collision, to which she replied: "No, that's, he was, he just ran, and, it wasn't until you fellows turned up that um he has turned around 'cause the police officer was asking me what had happened. I said, 'They were both speeding down,' 'I was the other driver, I was not speeding and she tried to pull over in my lane.'"

(iii) statement: 13 August 2012

1. Ms Nordsvan's third account was given in a statement apparently made for insurance purposes.
2. 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.
3. Her statement continued: "12. I checked my side mirror and could see two vehicles beside each other back about 100 metres heading towards me. Street lights are very good in this area and therefore I could see the car in the righthand turn lane, side by side with the dark 4-wheel drive. 13. I watched them approach very quickly and they [passed] me, they were still side by side and when getting close to the lights ahead, the car in the right-hand turn lane veered out of that lane and hit the front driver's side corner of the 4-wheel drive, with the front passenger side of his car. There were no brake or blinker lights whatsoever from both cars as they sped towards these lights that were green. I believed they were both travelling at about 130 to 140 kph. 14. As soon as he hit the four-wheel drive, the brake lights on the four-wheel drive went on but immediately skidded quickly over to her left and straight into the rear driver's side of the stationary sweeper with such a force that it pushed the sweeper onto the gutter while buckling the rear wheel. 15. The red car kept heading south at speed through the intersection and it went out of sight."
4. 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.

(iv) evidence in the Coronial Inquiry: 24 July 2014

1. 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."
2. She said: "The red one was in the turning lane and as they've come down both were right next to each other and then the red one's came over, hit the lady in the Pajero [sic - Toyota Prado] and just kept going …".
3. 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".
4. She said again: "…Both really going very, extremely fast and as they've come to the Wonderland Drive lights, the red car's just came over and hit the lady's front end and she's braked and it's just skidded out and went wack into the road sweeper."
5. She again estimated the speed at "well over" 100 kph and guessed it to be about 120-130 kph, or even more.

(v) trial evidence: 15 August 2017

1. 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".
2. 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".
3. She was asked her recollection of how far the vehicles had travelled past her vehicle. She said: "… I'd say about 74 [metres] because when they collided the silver one [the 4-wheel drive] braked and went into, like, a spin and come up on and hit the road sweeper. So, she came back a little bit in that spin."
4. 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: "Q: So that the front of the vehicle came round to face backwards and kept coming round and then collided with the street sweeper. Is that what you mean? A: It could be. Q: Is that your recollection of what happened? A: I remember spinning out and it was just spun - it spun and hit so fast, whether it done a 360, 180, it was in a - I can't recall it doing a 360 but I do recall it being spun out. … Q: Do you remember whether this spin was in a clockwise direction or an anticlockwise direction? A: Anticlockwise. Q: And is your best recollection that there was a complete rotation, 360 degrees - - A: I can't recall that - - Q: Or do you just don't know? A: I really can't, I just remember seeing her coming, heading into the spin, and then hitting that. I can't recall whether it done 380, 180, what. I think I went into panic and shock myself, I don't know. I just - it was a long time ago now and I can't remember."
5. There was more cross-examination to similar effect.
6. 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: "A: That is - yeah, yeah, because that is when I - it started to spin, that is when I said to you, I can't tell you if it went 360 or 180, but I did see it starting to spin and hit the road sweeper. Q: What I am suggesting to you is that it wasn't even 90 degrees? A: Yep. Q: It went into an arc to its left and hit the back of the street sweeper? A: It skidded, not maybe, I should say skidded, but skidded, spin, lose control."

(i) interview with police: 23 December 2011

1. 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.

(ii) evidence in the Coronial Inquiry: 23 July 2014

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

(iii) trial evidence: 16 August 2017

1. 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.

John Amanuel

1. 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:

(i) account given to Senior Constable Trivett: 30 January 2012 "Said - stopped at 1st set of lights on Walgrove Rdat overpass for M4. Red Ford in front, no 4WD. Lights changed drove off, both going 70 km. Then 4 WD came from nowhere in lane 1 (they were in lane 2) and was driving side by side with Red Ford. He could see RTA cars stopped in lane 1, 100's of metres ahead with → and slowed down to 65 km. The Ford kept pulling away quickly, seemed to speed up & was at least 100 m ahead. The 4 WD was still beside it. Neither car applied brakes before acc. The 4WD ran out of room & hit Ford on front tyre before spearing off to L & into street sweeper. … Spoke to Ford driver who was quick to say 'it wasn't my fault, you saw.' … Neither car braked before, or would slow down, both kept getting faster and pulled away with increased speed."

(ii) evidence in the Coronial Inquiry: 23 July 2014

1. 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: A:…So the traffic lights [at the M4 intersection] turned green and it was turned on, and then we passed. The next thing I saw there was a car coming on the left side. From far away I noticed there was a vehicle, the vehicles that they do repairs on the road, and on it there was an arrow which indicates that people need t drive on the right side. After that I saw two guys driving beside each other, the red one and what you call it, the Mitsubishi. … "Q: What did you see the two cars do? A: (INTERPRETER): The two cars, they were driving alongside each other and I slowed down, back a bit further, because I thought maybe one of them wants to change lanes. The one on the left side want to go to the right. Maybe the one in front will give space so this one can actually pass or it [sic - if] she needs to slow down."
2. He then is recorded as saying: "They're driving together in two lanes. The next thing I saw is this one, and he is grabbing the left hand and hitting the right hand, I saw this one hitting this one and then it hit the truck." The Coroner then recorded: "Just for the record, Witness A has indicated with two hands that two vehicles are travelling side by side and then the vehicle on the left has moved to its right and struck the vehicle on the right, and then the vehicle on the left has crashed." Mr Amanuel confirmed that that was what he had indicated.
3. Mr Amanuel was asked about the speed at which the cars were travelling and replied: "To be honest, I don't know. I can't tell who's at fault and who did not - who's at fault and who caused. … The next thing I knew it was right there in front of me to my left … about 50 to 100 metres."
4. He then described seeing the street sweeper.
5. In cross-examination he said that he was travelling at 50 to 60 kph when he first saw the two vehicles.

(ii) trial evidence: 17 August 2017

1. Mr Amanuel's evidence in the trial was given by telephone link and through an interpreter. The transcript records the following evidence: "INTERPRETER: I was driving on Wallgrove Road near the M4 … He said the traffic light was red then like became green. There was a Ford car in front of me from far we saw a car like you know stopped in the council line [sic - lane]. Like they parked the car in front of me gone I was going behind it and then a car from the left side came. I think they were, like, you know, going at the, you know, parallel to each other then then I stayed at its behind. I was afraid that one of the cars like you know would smash with the others. No one gave way to the other one so I saw the car that came from the left hit the car on the right then went on the truck. … When the car from like you know the left side hit the truck the one on the right kept going so I followed it. When you know he saw me behind him he stopped. He got off the car and he told me 'it was not my fault'."
2. The transcript goes on to record: "Q: You said that at a point after you had moved through the traffic lights the two vehicles ahead of you were parallel? A: (INTERPRETER) Yes together. Q: Can you explain to us what you mean by parallel or together? A: (INTERPRETER) I mean no one was giving way to the other. Q: At that point how many traffic lanes were there on Wallgrove Road in your direction? A: (INTERPRETER) There were two lanes and then they became one because you had to give the sign [he explained that he was referring to the directional arrow on the street sweeper]. … Q: Which of the two cars you saw was in lane 1, the same lane as the truck? A: (INTERPRETER) The Ford that I was going like you know in front of me. Q: All right. Which lane was the vehicle in which the children were ultimately found, which lane was that travelling in? A: (INTERPRETER) On the left. Q: Which of two vehicles was to the left as you were looking at them, the Ford or the vehicle where the children were ultimately found? A: (INTERPRETER) The one with the children. The one that hit the truck there was the children in the car. Q: You said that the two cars were parallel to each other? A: (INTERPRETER) Yes. Q: At some point they hit each other, is that right? A: (INTERPRETER) They didn't hit each other, the one from the left hit the one on the right. The car that came from the left was trying to escape from the one on the right. Couldn't, so hit him and hit the truck. … Q: Can you tell us just exactly what you saw that car do? This is the car on the left with the children in it, what did you see it do? A: (INTERPRETER) Hit the truck on the back side near the tyres. Q: What I'm asking you about is what did it do before it hit the truck? A; (INTERPRETER) I didn't see. I only saw like the truck, the car hit. … Q: What I am asking you to describe is how the car on the left came to hit the car on the right. Can you just described [sic] what movements of the cars you saw? A: (INTERPRETER) When I was like we were driving behind them I saw the two cars didn't want, none of them gave way to the other. I believe the Ford should have given way to the one on the left to go."
3. The interpreter expressed some difficulty in hearing the answer and asked Mr Amanuel to repeat it. The answer is recorded as: "(INTERPRETER) The car on the right and the car on the left, they were you know like driving at the same speed. The car on the left wanted to merge to the right, okay because she saw the sign that like you know the two lanes become one. Q: What did she do? A: (INTERPRETER) Okay, she tried to get in the right lane. She couldn't. She hit the right lane, then she hit the truck. Q: When she tried to get into the right lane what happened? A: (INTERPRETER) She hit the car then she went on the truck. Q: Where was the red Falcon when she hit it? A: (INTERPRETER) They were together. … Q: Which traffic lane was the red Falcon in when it was hit by the other car? A: (INTERPRETER) She was on the right side, then when she hit the other car, then she went to the other side. Q: The question I asked you was, did you see the Falcon change lanes at any time, the red Falcon? A: (INTERPRETER) When it hit, it went to the right lane then to the left. Q: I am only asking about the red Falcon, not the other car, do you understand? A: (WITNESS) Yes, yes, I know. Q: I want to ask you whether the red Falcon ever changed lanes, not the one that hit the street sweeper, the red Falcon? A: (INTERPRETER) After the hit, went more to the right."
4. 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.

Bruce Gorey

1. 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.

(i) interview with police: 3 January 2012

1. 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: "…I come down to the intersection there at Wallgrove Road. I swung around onto Wallgrove Road heading north is it? North towards the M4. I noticed a sweeper on the other side of the road with a utility behind it with um, flashing lights, an arrow pointing to move lanes. Um, what brought to my, it was um, why I looked is a girl was driving the ute and I thought she had a good job. I travelled up the road, I probably got to about Interchange Drive I think it's called. I seen a four-wheel drive and I can't tell you what the other car was, probably go past me side by side. They seemed to me, oh, they brought to my attention that they seemed to be going a lot faster, maybe oh, I couldn't say racing but, and then um, I continued up Wallgrove Road, I Iooked in my rear vision mirror, seen the four-wheel drive sort of swerve to the right. I thought to myself did they have a collision which I wasn't sure so I continued on. The next day I heard it on the radio. …".
2. 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.
3. He thought that the Falcon was a "reddish" or "maroon" colour.
4. 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.

(ii) evidence in the Coronial Inquiry: 22 July 2014

1. In the Coronial Inquiry, the evidence Mr Gorey gave was consistent with what he had said in his interview. He said: "Well, under my opinion, when I passed them, they were travelling at a pretty high speed. My initial thought was they were racing each other. I thought to myself hopefully they'd have seen that sweeper down the road. … In my opinion they were travelling at high speed and I travelled up the road a bit more. Like I said, I hoped that they thought they seen the sweeper."

(iii) trial evidence: 16 August 2017

1. Mr Gorey also gave evidence by telephone link, from Cairns, where he was holidaying.
2. 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.
3. 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.

Yaseen Sattar

1. 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.

(i) recorded interview: 4 January 2012

1. 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.

(ii) evidence in the Coronial Inquiry: 24 July 2014

1. 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.

(iii) trial evidence: 16 August 2017

1. Mr Sattar also gave his evidence by telephone link. When asked to describe what he saw, he said: "…I saw two vehicles approaching, on the opposite side of the road, travelling away from the M4. They were trying to get - they were driving pretty fast, and one thing I did notice was one vehicle hit the road cleaning truck and the other vehicle continued on."
2. The street sweeper was 100-150 metres from the intersection of Wonderland Drive. The escort vehicle was about 3 metres behind.
3. 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.

Billal Tehan

1. 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.
2. 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. 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. 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. 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. 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. 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. 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. Mr Keramidis did not comment on these opinions.
8. 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. 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. 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. 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. 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. 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. 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. She declined to place any reliance on Mr Gorey's evidence, saying: "…bearing in mind he did not see the collision and it is not clear to me at what stage he passed the two vehicles or the distance from the escort vehicle or sweeper. As well his truculent manner did not assist me in trying to achieve any clarity."
7. 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. 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. 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. 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. 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. 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. 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. 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. Ms Nordsvan was, it was submitted, wrong in a number of respects:

• the location of the collision (which she said was virtually at the intersection);
• her evidence that the 4-wheel drive "spun";
• the speed of both vehicles;
• the location on the road of the two vehicles;
• her evidence that the street sweeper had stopped (contrary to the evidence of Mr Smith).

1. 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. With that rather lengthy prologue, my conclusions can be stated with relative brevity.
2. 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. 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. 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. 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. 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. 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. On appeal, senior counsel for Mr Aukuso sought to explain this critical fact by saying: "My friend asks, I think, in his submissions as I understand them, how can that [the point of impact] be consistent with [Ms Tahan] merging from lane 1 into lane 2 and colliding with [Mr Aukuso's] vehicle halfway through that merge, which is our case? To which our response is that this is not a static situation, but it's a dynamic situation. We say that [Ms Tahan] passed Ms Nordsvan's vehicle early in the merge. Ms Nordsvan's vehicle is only 1.8 metres wide, the lane is 3 metres wide. It doesn't take up the whole lane. There's space to her right to get past her in lane 1….".
9. 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. Senior counsel went on: "Yes … We say that the likelihood is that [Ms Tahan] left it very, very late and only got out of lane 1 when she absolutely had to. That was consistent with two things. One, that she had no idea at all perhaps that [Mr Aukuso] was there, so there was no need to get out of the lane earlier. Or two, as the witnesses saw, both vehicles appeared to be demanding that the other one yield, and only when that wasn't going to happen did [Ms Tahan] get out of lane 1, because if she didn't she was going to run straight into the back of Ms Nordsvan." But that explanation is simply inconsistent with a point of impact 35 metres south of Ms Nordsvan's vehicle, and in the centre of lane 2. Moreover, had Ms Tahan made a last minute change of lane, as suggested, it might be expected that the witnesses would have expressed concern for Ms Nordsvan's safety. But Mr Gorey, who was conscious of Ms Nordsvan's vehicle, hoped that the drivers had seen "the sweeper": And Mr Amanuel apprehended a collision between the 4-wheel drive and the Falcon. He did not give evidence of anticipating a collision between the 4-wheel drive and Ms Nordsvan's escort vehicle. Further, had the 4-wheel drive been approaching Ms Nordsvan from behind in lane 1, some apprehension on her part for her own safety might have been expected. She expressed none.
11. 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. 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. 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. The orders I propose are:
15. Appeal allowed in part.
16. The judgment of 19 October 2017 is set aside.
17. In lieu thereof, judgment for the respondent (Ms Hana Tahan) in the sum of $350,000.
18. Each party to pay his or her own costs of the appeal.

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