Jovanovic v Santi

The defendant's description of the circumstances of the accident

1. Paragraph 1 of the Defence filed on 25 July 2016 states: "1. In relation to paragraph 1, the defendant admits that the accident occurred on 4 June 2013 and that the plaintiff and defendant were travelling in the stated vehicles in the stated lanes on Cowpasture Road. The defendant does not admit that the accident occurred at 3.20pm or that the vehicles were travelling in a generally southbound direction. The defendant says that the accident occurred at around 10.00am and that the plaintiff and defendant were travelling in a generally northbound direction."
2. The defendant gave evidence which is discussed in more detail below.

Reconciling differing descriptions of a motor vehicle accident

1. It is a common problem in personal injury proceedings, particularly where there is a delay of some years between the date of the accident and the date of the court proceedings (in the present case, over 4.5 years), that inconsistencies and errors in oral evidence may occur. The immediacy of the contemporaneous reports made by a party means that, as a general rule, those documents are more likely to be accurate.
2. In the present case, there is the added difficulty that although the plaintiff came to Australia in 1994, his English is asserted to be extremely poor and it is submitted that a significant factor in both his descriptions of the accident and his evidence in the witness box is the lack of familiarity he has both with the English language and the court process.
3. Where there are descriptions of the accident from a series of contemporaneous sources, these are not necessarily all given the same weight. In particular, the Court of Appeal has repeatedly warned that statements made to medical practitioners should be treated with a degree of caution as medical practitioners are seeking to treat the medical problems, not record the manner in which the injury in question was incurred (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23]).
4. None of these decisions discuss another issue upon which medico-legal practitioners frequently express opinions, namely whether the plaintiff is genuine in his/her reports of injury and ongoing disability. Statements of that kind are of some significance in this case, in that counsel for the plaintiff's opening submission (as set out paragraph 1(a) of his outline) is that the plaintiff has been accepted as "genuine and presenting as honest without embellishment or exaggeration" in relation to his ongoing disabilities and that, by inference, the plaintiff's description of how the accident occurred should similarly be accepted as genuine and honest. The defendant makes the contrary submission concerning the plaintiff's credit, although this is based upon the inconsistencies in the plaintiff's description of where and how the accident occurred.
5. As a general rule, courts should be cautious about making findings that a party has come to court to tell lies upon oath and to consider observations as to credit (or lack thereof) by other persons to be of a significance out of proportion with the fact-finding process as enunciated by Justice Ipp in his Honour's helpful analysis of this issue referred to in paragraph 2 above.
6. Statements recorded by police officers, however, generally fall into a different category. The principal interest of the police officer recording an event is likely to be in making an accurate document.
7. In the present case, that general principle is subject to challenge, as there is a degree of hostility demonstrated in the police report, in that the police officer goes on to note that the plaintiff was viewed with suspicion because of his apparent lack of injury: "Police explained to the INF that due to the time delay of attending the doctor's surgery and also claiming he had no injury at the time of the incident that Police will only make a record of the incident but will not create an event for a P4 as there is no proof the injury is from the incident. While the INF was at the Police station he was observed to move his arm in a large circle and lift it above his head, showing that there can't be too much pain if he can move it like so." (Exhibit A, p 13)
8. This observation by the police officer has been answered by the defendant's medico-legal expert, Dr Perla, who observed that the plaintiff did have restriction of movement when seen on 14 November 2013. I agree with Mr Oag's submission that it would appear that the plaintiff did not make a good impression in the Police Station upon the police officer taking down his information. Accordingly, I have treated the police report with a far greater degree of caution than would otherwise be the case.
9. Viewing the evidence as a whole, the most significant area of difficulty for the plaintiff is his description of the accident on the claim form. As is set out in more detail below, the differences between this and other contemporaneous descriptions and the evidence of both parties in the witness box is the central issue for determination. As the defendant's attack on the plaintiff's case is principally based upon these inconsistencies, I should first note Mr Oag's explanations for them.
10. Mr Oag submitted that I would pay little regard to what is set out in the claim form for the following reasons: 1. The pro forma "square" diagram provided in the claim form is unhelpful and encourages errors. 2. Although the plaintiff was accompanied by his solicitor, there is no evidence that he had an interpreter available. 3. The solicitor was not present when the plaintiff later signed the statutory declaration, which was witnessed by a travel agent and not by a legally qualified person. 4. The plaintiff is unfamiliar with the legal process and, by inference, intimidated by the process of providing information.
11. The description of the accident identifies a failure to give way, not two vehicles travelling side by side, in circumstances where the defendant's vehicle is shown as entering the roundabout in which the plaintiff's vehicle is already present. While I am cautious about drawing conclusions from a diagram which is using an inappropriate pro forma illustration, that is more or less what the diagram shows.
12. However, the plaintiff's evidence in the witness box is the most important material to be put before the court in that, if that evidence is sufficiently clear and explanatory, the inconsistencies in the claim form can be viewed in that light.

The plaintiff's evidence

1. The plaintiff gave evidence through a Serbian interpreter. He told the court that he had come to Australia in 1994 as an adult after qualifying as an electrician in Bosnia. He had always been employed, first as an electrician, but had driven trucks for over the twenty or so years he had lived in Australia prior to the accident. He lived very close to the scene of the accident and had driven around the intersection in question many thousands of times. As an experienced truck driver he was careful on the roads at all times.
2. The plaintiff described how he first saw the defendant's vehicle "driving behind me quickly" when he was "already in the roundabout". Her vehicle hit his without warning. He was thrown forward but the air bags did not inflate.
3. The plaintiff identified the point of impact as being on the roundabout between Cowpasture Road and the park exit (see Exhibit 5). He said that the defendant stopped her vehicle and he blocked the traffic so that no one would hit her. They both went to the other side of The Horsley Drive to exchange information. He was asked what she had said in the course of exchanging information, and stated that she said "Sorry, sorry". He did not describe any conversation about the indicator of the kind he gave to the police officer during his visit to the police station. He said that they did not call the police, "not straightaway", but said that he did so "the next day".
4. The plaintiff was not in pain immediately and completed his day's work. When he did start to suffer pain later that day he saw a doctor "the next day". He continued to consult his general practitioner and asked for referrals as he was unable to sleep.
5. When asked how he suffered injuries in the accident, he said "I injured myself when I hit the brakes". He gave evidence about the impact of the accident upon his employment which is discussed in the section of this judgment on quantum.
6. In the course of his evidence, the plaintiff repeated, on a number of occasions, that he was very familiar with the road, as it was close to his home and he travelled on it "thousands of times". As an experienced professional driver, he was aware of the road rules and careful to comply with them.
7. The plaintiff was cross-examined about his nomination of the place on the roundabout of the collision as being between Cowpasture Road and the park exit. In cross-examination he placed the site of the accident as being further towards the point between the park exit and the exit onto The Horsley Drive. The plaintiff was asked about how, in those circumstances, he could have put on his claim form that he was "entering" the roundabout (in other words coming out of Cowpasture Road, a long way from the exit) or how it was that he said that in the claim form that the defendant's vehicle had failed to give way as he came onto the roundabout in such circumstances.
8. The plaintiff agreed that the version in the claim form was different to his evidence in the witness box and said "I signed it [the claim form], but it's not correct". He said it was "not written properly" and that he "didn't see" the diagram. He agreed that the diagram showed the accident as occurring at the Cowpasture Road exit onto the roundabout which would be wrong.
9. The plaintiff was asked about whether he had put his indicator on, in that he had said nothing about his indicator in the course of examination in chief, although he refers to the indicator in his statement to police and to Dr Perla. It was put to him that if his indicator was in fact on, the plaintiff would not have seen it, as she was on the other side of the vehicle, to which he agreed.
10. It was put to the plaintiff that as the defendant was in the lane to go straight ahead there was no need for her to merge into the plaintiff's lane to which the plaintiff replied "she drove too quickly, that's how she entered my lane". He also volunteered that the defendant had "ask me not to call the police".
11. The plaintiff was asked about his statements about the speed of the accident (particularly in his description of the accident to Dr Patrick) in light of the acknowledged minor damage to the vehicles. He acknowledged there had been almost no damage to the defendant's vehicle and that the indentation of his vehicle's right front panel was comparatively minor, as shown in the photographs tendered. It was put to him that the damage was consistent with a low speed glancing blow, rather than to a high speed impact of the kind that he described to Dr Patrick to which the plaintiff replied (not unreasonably, in my view) "I don't know".
12. The plaintiff was also cross-examined about how it was he now claimed to have been injured from the impact ("I hurt myself") and not from the collision of the vehicles, to which he replied "I've always said that".

Analysis the plaintiff's evidence

1. Mr O'Dowd submitted that the plaintiff's credibility was "a red hot issue" put to the plaintiff on several occasions that he was lying in his evidence. However, the plaintiff did not impress me as a person who was lying, but as someone who was genuinely uncertain what had happened. All he knew was that there had been an accident and he thought that the defendant must be at fault.
2. Prior to giving evidence, the plaintiff had given a series of versions of the motor vehicle accident which make it difficult to determine liability. He acknowledges that the accident as described on the claim form was incorrect. That diagram and more importantly the words underneath it show the vehicle "entering" the roundabout (in other words, coming out of Cowpasture Road, a long way from the exit where the accident is more likely than not to have occurred) and that the vehicle at fault "failed to give way" (in other words, failed to give way to a vehicle already in the roundabout). The diagram is particularly unhelpful as it shows the point of entry as described but the vehicle on the left outside lane is shown as the plaintiff's vehicle and the vehicle on the right hand lane is the defendant's vehicle, which is opposite to the description of the accident given by the plaintiff. In addition, the place demonstrated in the diagram is wrong.
3. The plaintiff's evidence cast little light not only on how these errors had occurred but upon what really happened on the day in question. He agreed in cross-examination that he was further in the roundabout than shown on this diagram than he had stated in his evidence in chief. He disputed being as far into the roundabout as the defendant claimed, but acknowledged the inconsistencies of the earlier descriptions.
4. Additionally, the information with which he provided the police, namely that the defendant "misunderstood his indicator" and his placing of the accident at the intersection of Cowpasture Road and The Horsley Drive (in other words, at the same place as on the claim form) remains unexplained. He agreed that the defendant was in a lane which was proceeding straight ahead and the plaintiff's blinker could not have been seen by her as it was on the opposite side of the vehicle.
5. The plaintiff's evidence, far from clarifying the inconsistencies in his prior contemporaneous statements, merely added further inconsistencies.

The defendant's evidence

1. The defendant described herself as "a full time mum" but said that at the time of the accident she had been in full time employment as a retail assistant delivering products over the Sydney area, which required her to drive regularly. She acknowledged that she had a P plate at the time of the accident.
2. The defendant was driving what she called her "usual route" from her boyfriend's home to her own home when she entered the roundabout. The roundabout had two lanes, one to travel straight ahead and one for right turn into Bossley Park. As she did not intend to go to Bossley Park, she headed straight towards The Horsley Drive in the right hand lane. She had been travelling at about 70 km/hr before the roundabout but "slowed right down" because of traffic in the roundabout.
3. As she travelled along, the defendant noticed the other car in the left hand lane "just a bit before me" and when they were approximately level, they were driving past the left hand turn leading to the park. She was driving straight ahead to go to Blacktown when, just as she was about to get to the exit, she was hit on the left hand side by the plaintiff's vehicle. The impact was not "massive" but enough to move her vehicle out of its path. She turned to the right and went onto the opposite direction so that she could stop safely and pulled over near the Bossley Park exit. The plaintiff pulled up behind her.
4. In cross-examination, it was put to the defendant that in travelling in this lane she would have to veer around the roundabout in order to negotiate the bend in the roundabout, to which she agreed. It was put to her that she failed to perform these negotiations with her vehicle safely in that she was travelling too fast, which she denied. She remained steadfast in her description of the accident in these terms.
5. The defendant's credit was the subject of sustained attack: 1. It was put to her that she lied about the circumstances of the accident because she was driving her mother's car and her name was not listed as a person entitled to drive, which would mean (it was put to her) that the vehicle was uninsured. The defendant said she was "not sure" if her name was on the insurance policy or not. 2. It was also put to her that if she called the police she would lose her licence and that she had begged the plaintiff not to do so (although the plaintiff had not said this in his evidence). The defendant said she wanted to call the police because the plaintiff initially refused to provide his particulars, and that it was only after she had said she would call the police that he provided them. 3. It was put to her that she was an inexperienced driver, to which she replied she had been driving three to four years and was familiar with the area. 4. Finally, it was put to her that she had a speeding offence recorded against her, to which she replied that this did not relate to the accident, or to any event prior to the accident, but to an event occurring some time afterwards.
6. The Defence pleads that the plaintiff attempted to make a right hand turn from the left hand lane into the roundabout. In his outline of submissions, Mr Oag submitted that the defendant did not make this allegation at trial, which meant that her versions of events had changed and her evidence should not be accepted.
7. The description of the accident set out in the Defence was not put to the defendant and I had not had the benefit of hearing her explanation in reply. However, I consider that the description of the circumstances of the accident in the Defence is in fact consistent with the description given by the defendant, in that the Defence describes the plaintiff entering from the left hand lane into her lane, which she construed as being a lane-changing action by the plaintiff.

Conclusions concerning liability

1. Where evidence is unsatisfactory, the court may prefer to fall back on the principle that the case is decided on the basis that the party on whom the burden of proof lies has failed to satisfy that burden: Masson v Zahoor [2009] All ER (D) 33 (Jul) at [153] citing Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 at 951 B-D. Rhesa Shipping SA v Edmunds has been referred to with approval in the New South Wales Court of Appeal in Jackson v Lithgow City Council at [12]. Where the evidence of the plaintiff fails to do so, a finding to this effect may be made independently of and in addition to a finding that the defendant has made out the defence case.
2. There are two issues, however, about which I do not propose to make findings at all. First, both counsel made submissions to me about findings of fact that I should draw from the photographs of the motor vehicles in relation to the pattern of damage. I decline to do so for the reasons explained by the New South Wales Court of Appeal in Angel v Hawkesbury City Council [2008] NSWCA 130; Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956. Second, there is no expert evidence in this case, and Mr Oag is correct in his challenge to the submissions of Mr O'Dowd concerning the position of the vehicles after the accident. I do not propose to make any findings on this issue, not least because Mr O'Dowd acknowledged that it was an idea which came to him after the evidence was complete and no questions had been put to the parties in relation to factual issues relevant for such a finding.
3. If the accident had occurred in the manner described by the plaintiff on the claim form and to the police, liability would have been a straightforward issue, as the defendant would have been entering into the roundabout without giving way to the plaintiff.
4. However, it is clear that this is not the case. The accident occurred while they were both already in the roundabout, where they were travelling in separate lanes when one vehicle, most probably due to the curve in the road, failed to correctly remain in its lane and struck the other.
5. Precisely how the accident occurred is a matter about which the onus of proof lies upon the plaintiff, and it is an onus that the plaintiff has not discharged. To the contrary, I am satisfied by the evidence of the defendant, who gave evidence in a clear and concise manner, making concessions where appropriate, that the accident occurred in the manner that she describes.
6. As noted at the beginning of this judgment, I have taken into account, when arriving at this determination, that English is not the plaintiff's first language. He did not have the benefit of an interpreter with him when he attended the police station, and for this reason, I view his statements to the police with considerable caution. Nevertheless, he had the benefit of assistance from the solicitor who helped him complete the claim form and I am satisfied that in a comparatively straightforward case such as filling out the form setting out the circumstances of the motor vehicle accident, any language difficulties the plaintiff had would not have prevented him from communicating clearly to his solicitor how the accident happened, where the vehicles collided and the speed at which the parties were driving. His evidence in the witness box only added to the confusion.
7. Accordingly, I am satisfied that the motor vehicle accident occurred in the manner described by the defendant. Judgment will be entered for the defendant. I include in my judgment some observations as to contributory negligence and quantum, in the event that I had erred in my findings as to liability.

Contributory negligence

1. If the accident occurred as the plaintiff described in any of the versions he gave (and in particular the version he gave in his claim form), it is hard to see how there could have been any contributory negligence involved.
2. Although Mr O'Dowd submitted that contributory negligence would be 100%, this appear to be on the basis that the accident occurred in the manner his client described, but she was in some way found to be liable. However, if the accident occurred the way the defendant described, the defendant was not liable for the accident.
3. I accept Mr Oag's submissions that if the accident occurred the way the plaintiff described (either in the claim form, or in one of the versions he gave in the witness box), it would be hard to see how there could be any act of contributory negligence in that the defendant's vehicle would have in some way entered his lane of traffic.
4. Accordingly, I find that there has been no contributory negligence.

Quantum

1. The following are my brief observations in relation to quantum in the event that I erred in finding for the defendant.
2. The plaintiff is not entitled to non-economic loss and makes no claim for past economic loss or for past paid care.
3. Both parties tendered medico-legal reports. Clinical notes from the plaintiff's general practitioner are also relied upon (Exhibit A, documents 16 and 17; Exhibit 1, documents 4 and 5).

Past and future out-of-pocket expenses

1. The plaintiff relies upon the Medicare form dated 23 January 2018 which gives total out-of-pocket expenses of $904.50. The defendant relies upon the careful analysis of past and future out-of-pocket expenses by Dr Crocker in the MAS assessment and restricts the past claim to $432.60. Of the two, I prefer Dr Crocker's analysis as Dr Crocker carefully differentiated between those expenses which the plaintiff can claim and which the plaintiff cannot claim (as to which see Dybka v McKenzie [2002] NSWCA 171). Accordingly, this is the sum that should be awarded.
2. As to future treatment, the plaintiff claims future out-of-pocket expenses in accordance with the report of Dr Patrick, namely ongoing painkilling medication at $310 per annum for the plaintiff's prospective life expectancy. The defendant relies once again upon the careful analysis of these expenses by Dr Crocker of $4,582.63. The difference is a matter of less than $500. Of the two, I prefer the item by item analysis of Dr Crocker to the global approach taken by Dr Patrick.

Future paid care

1. Future commercial care is claimed at one hour per week at $35 per hour up to the age of 70 years capitalised from the 5% tables, making a total of $17,600.
2. There are significant problems with this claim: 1. There is no evidence of the kind outlined by Basten JA in Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393. 2. Although the plaintiff gave some limited evidence as to what he did before and after the accident in terms of home duties, he did not give evidence that he would pay for commercial care if necessary (as to which see Miller v Galderisi [2009] NSWCA 353). 3. The plaintiff's wife was not called to give evidence. All I know about her is that she is some years younger than the plaintiff. 4. The plaintiff is currently 58 years old and the claiming of such a figure until the age of 70 should be set out conformably with the practice outlined in Metaxoulis v McDonald's Australia Ltd [2015] NSWCA 95. While I note that the claim stops at age 70, the reasoning behind this approach was not explained. 5. Dr Patrick opines that the plaintiff requires "at least 6 hours" assistance for the six months after the accident and for one to two hours in the future. His statement to this effect at page 5 of his report of 11 September 2015 (Exhibit A) are of the ipse dixit nature, in that he has not exposed his reasons for doing so and I note in this regard the observations of Basten JA in Boral Bricks Pty Ltd v Cosmidis (No 2). The plaintiff did not adopt Dr Patrick's findings at all in relation to the past, and at a lesser sum for the future, but without explaining why.
3. For each of the above reasons, the plaintiff has not established any entitlement to future paid care. Future care of any kind can be a substantial sum. The onus lies on the party seeking such a payment to identify the nature and extent of the amounts sought and to provide evidence, rather than refer in a general sense to "lawn mowing" or to unspecified tasks of a handyman nature.

Future economic loss

1. The plaintiff claims no past loss but, for the future, claims a buffer of $75,000.
2. The plaintiff's tax returns demonstrate that the plaintiff's business has done far better since the accident than beforehand. While the plaintiff's explanation was that he had changed his method of work so that he could work less hours for more money, the figure at $75,000 was not the subject of any explanation.
3. Dr Patrick claims that the plaintiff will have to cease work three years early. There is no exposure of his reasoning for this claim (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705). This is inconsistent with the observations of Dr Crocker. I note this claim was not pursued as part of the plaintiff's submissions.
4. While it is to the plaintiff's credit that has been able to reorganise his work so that he has in fact earned more since the accident rather than less, a small buffer for future economic loss to the age of 67 would be appropriate. Where the court is asked to do "the best it can" (New South Wales v Moss (2000) 54 NSWLR 536), that is often best done with a buffer. In the present case, I would award of buffer of $50,000.

Costs

1. At the request of Mr O'Dowd, I have reserved the issue of costs with liberty to apply.

Orders 1. Judgment for the defendant. 2. Costs reserved, with liberty to apply. 3. Exhibits retained for 28 days.

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