Mouzakzak v The Nominal Defendant [2020] NSWDC 423 | Case summary

Mouzakzak v The Nominal Defendant [2020] NSWDC 423 | Case summary | Zoe

[2]

The plaintiff's evidence

The plaintiff was a friend of Ms Khaled. They lived in the same building. The latter was also a neighbour to the plaintiff's brother.
The plaintiff gave evidence that she was a front seat passenger in the MB driven by Ms Khaled. They were intending to go to dinner together. It was night-time when they were travelling. She recalled that at a point proximate to where the accident arose, although there was street lighting, the lighting was not strong. She recalled that the road was split in two lanes. She recalled that that at a point approximate to when the accident arose, Ms Khaled was driving up the hill.
The plaintiff said that she recalled seeing the headlights of the UV, but she could not recall which lane those lights were coming from. She next recalled that the UV came so close as to hit the MB. She said that she heard the impact of the UV striking the MB. The noise came from the right of the MB. She next recalled that the MB travelled to the left side of the lane whilst there was a loss of control by Ms Khaled. She attributed the MB hitting the tree because of Ms Khaled's loss of control. The plaintiff recalled that airbags in the MB were activated before she suffered a loss of consciousness. She only returned to consciousness upon the arrival of the ambulance before she was taken to a hospital. She did not recall speaking to police.
She had no opportunity to identify the colour or make of the UV. However, when describing the accident in her claim form, which she signed just over a month later, on 19 June 2016 (Exhibit B), she identified the UV as being coloured yellow. She explained in her evidence that this reference to colour was based upon what Ms Khaled had told her. She did not draw the diagram that was inserted in answer to question 14. This had been drawn for her, again on the basis of what Ms Khaled told her, but she attested to the correctness of the diagram.
The plaintiff gave evidence that she was familiar with the MB prior to the accident. She had seen it before. She did not recall seeing any damage to the right side of the MB prior to the subject accident, generally or, specifically, on the night she got into it just prior to the accident.
Under cross-examination, the plaintiff said that the invitation to dinner from Ms Khaled was 'out of the blue': it came the same day. She was taken through her personal injury claim form. It was readily apparent, and the plaintiff candidly accepted, that Ms Khaled was the source of much of the information that led to the drawing of the diagram and the description of the accident. The plaintiff did not know a great many things about the accident notwithstanding that she had appended her signature under a statement of declaration as to the truth of what was represented in the diagram and accident description. She did, however, accept that, prior to the accident, she had no reason to look at the driver's side of the MB and could not recall the last occasion when she had seen the condition of that side of the car.
At its highest, in terms of her knowledge and recollection of how the accident occurred, the plaintiff said in her cross-examination that the MB veered left. She said she remembered seeing the headlights of an oncoming car, but although she was seated in the front seat and recalled looking ahead, she did not see it at the point of impact; even though, it was suggested, she would have been 2 or 3 metres away from the other car at the point of impact. She said she "heard" and "felt" the impact of being struck by an oncoming vehicle. When she said she 'felt' the impact, she said that she sensed that the MB had been struck on its right side. It was put, but she denied, that she only believed that she had felt something because Ms Khaled had told her about it. She accepted that Ms Khaled had told her that the MB was hit, but she maintained that she independently recalled this impact, after it was forcefully put that she was mistaken that the MB was hit by another car. She accepted, however, that after the MB's impact with the tree she fell in and out of consciousness, and that her memory of what occurred in the few seconds prior to the car's collision with the tree was "blurry". It was suggested, but she denied, that her evidence about the MB being struck by another car was not her true memory, but one based upon, if not affected by, what Ms Khaled had told her.

[5]

Ms Khaled's earlier reports

After the accident, she spoke to the police. Notes taken by the police based upon what Ms Khaled said were in evidence (Exhibit C), but their admission was limited so that they were not evidence of the truth asserted in the notes. The notes indicated that Ms Khaled had reported to the police officer that she was driving the MB at 60km/h when she saw a car opposite driving and merging left and right before hitting the MB on the front right side, at the point of the headlights. As soon as the other car driver hit her, she later reported to the police, she lost control and hit a tree. She reported that she had lost control by moving her wheel to the right before hitting the tree. She identified to the police that the other car was of a light colour. A diagram appended to the notes indicated that Ms Khaled had reported to the police that at the point of impact with the UV, it was in the lane in which the MB was travelling.
On 29 June 2016, about 6 weeks after the incident, Ms Khaled participated in an interview with Mr Clout, an investigator. The transcript of the interview was in evidence (Exhibit 1). It is apparent that the interview was interrupted: Ms Khaled's husband (Emad Hamdy) and brother-in-law (Mohamed Hamdy) were identified as being present; albeit that their full names were not accurately stated. The interview was terminated after only 26 minutes. Amongst other things which emerged from that interview was Ms Khaled's statement that she planned to have dinner with the plaintiff two days before the accident.
On 20 July 2016, she gave an interview to an investigator, Mr Scott, who was engaged by the insurer (Exhibit D). In the written record of that interview (whose admissibility was again limited in such a way that it was not truth of the contents of the description of the accident), relevantly, Ms Khaled reported that she was driving at the speed limit (60km/h) and that it was the UV that was on the incorrect side of the road when it impacted upon the front side of her vehicle (answer to Q 114) and stating that it was the front side of the UV that collided with the MB (answer to Q 115). She later reported in the interview that it was the front left side of her vehicle that collided with the tree (answer to Q 123).
Under cross-examination, and as noted in the section below concerning credit, Ms Khaled had precious little recollection the circumstances in which she alleged the MB was struck by the UV. There was no doubt about the Nominal Defendant's position however. Its Senior Counsel plainly put to Ms Khaled that her real intention and preconceived design was to take the MB, which had previously sustained some minor damage to its front right side, into an area of the road remote from adjoining housing, and whose landscape which, she knew, was dominated by roadside trees, in order to deliberately damage the MB without the prospect of observation by witnesses (other than the other occupant of the car, her friend the plaintiff). It was no coincidence that she took the long route for her vaguely described intention of going to an unspecified restaurant around Liverpool, to get to Henry Lawson Drive when a shorter route would have sufficed. Her knowledge of such design was, it was said, derived from prior experience in April 2015 in which she received an insurance payout well in excess of the price paid for her earlier vehicle. This was, so it was put, a pattern she had seen with other family members who made similar insurance claims following motor vehicle collisions. Her motive for doing so, it was put to her, was the meagre financial position that she and her husband were in: both unemployed; she (but not he) was in receipt of Centrelink benefits; and, as at May 2016, between them having nothing more than just over $200 in the bank accounts held singularly in her name, or jointly with her husband. It was noted, further, that some of these earlier motor vehicle collisions, including her own accident in April 2015, bore the same characteristics as the accident subject of this proceeding: they both occurred at night, and both were said to involve a UV. Indeed, there was a further co-incidence between her accident in April 2015 and that of a relative (her brother in law, Mohamed Hamdy) occurring at the same intersection at Bass Hill. It was suggested that what marked out the subject accident was that, either deliberately or negligently, Ms Khaled did not appreciate that the speed at which she was driving might result in serious personal injuries to her front seat passenger if the MB veered off the road onto an oncoming tree. All of this was denied by Ms Khaled.
She said in cross-examination that she did not brake prior to the impact of the MB on the tree. When it was suggested to her that she was driving at no faster than 45km/h (and possibly no more than 35km/h), she disagreed. It was also put to her, but she denied, that she told the plaintiff (and/or her solicitors), by 19 June 2016, that the colour of the alleged UV was yellow and that, in that respect, she had lied to the plaintiff.
She was also asked in cross-examination about extent of the damage she observed to the MB after the accident when she inspected it at Condell Park. She had, in her cross-examination, said that she had not "look(ed) much" at the car when she went to retrieve chattels within the damaged car (T 61). Over objection, she was asked what she meant by that, and she said that she noticed damage to the driver's side of the vehicle [1] . She also said that she observed that there was metal that was bent, and also some yellow colour. She added that she saw yellow paint on the front and on the driver's side.
Over the objection of Senior Counsel for the Nominal Defendant, but subject to a limitation that her evidence be limited, in this respect, to her credit, Ms Khaled was also asked in re-examination what conclusion she drew from her evidence about the impact of the alleged UV striking the car and the presence of yellow paint after the accident, Ms Khaled said she concluded that the other car was yellow. At this point, the Nominal Defendant sought leave for further cross-examination. In circumstances where there was apparent conflict between what Ms Khaled said in her cross-examination and her evidence in re-examination, I granted leave to the Nominal Defendant to further cross-examine. The upshot of that limited cross-examination was to show (Exhibit 4) that Ms Khaled had earlier, and inconsistently with her evidence in re-examination (that she saw yellow paint on the car after the accident), informed an investigator that at the time that she went back to the damaged car after the accident, she had not seen any yellow paint on the right driver's side of the car [2] .
In re-examination, Ms Khaled indicated that it was her husband who arranged the financial acquisition and insurances for the family cars. Although she accompanied him to the Gold Coast and was present at the time when the purchase was negotiated with the vendor of the subject MB, she was not attuned to the negotiations. In relation to her earlier accident in April 2015, she had not met the other driver, notwithstanding that she was the wife of her mechanic. Although she ran into the back of the car of the other driver, this was not deliberate. She was not involved in making a claim on her car following the accident.
As to other aspects of her re-examination, the effect of her evidence was that when she was first interviewed by an investigator (Mr Clout) (Exhibit 1) on 29 June 2016, whatever her husband and brother-in-law were trying to do, she did not intend to withhold information. In relation to past insurance claims arising from motor vehicle accidents in which her brother-in-law(s) were involved, she had not seen them frequently at about the time of this accident and she had not discussed with them, either at the time of the accident until even today, the topic of the connection between insurance claims and motor accidents. She was referred to her evidence about the limited funds in her bank accounts at about the time of the subject incident. She said that she did not recall feeling any financial stress at that time. In this respect, she indicated that after the Centrelink benefit was used to cover the rent, if she needed other money, she looked to her husband. She said that aside from herself, no one else drove the MB. She was referred to the insinuation that she chose to deliberately drive the MB into the tree and was asked whether she was aware, at the time she drove the MB into the tree, what the MB was insured for. She indicated that she was.
Ms Khaled also provided information to the insurer's investigator which facilitated the investigator's drawing of a diagram (Exhibit G); in which the position of the MB and UV were depicted (the admissibility of the diagram was limited so that it was not evidence of the truth of what was depicted). The diagram depicted that the MB was in the proper lane, but that the UV had crossed over into the MB's lane.

[7]

Mr Johnston's evidence

The plaintiff relied upon expert evidence of Mr Grant Johnston, a civil engineer. Mr Johnston prepared two reports, dated 20 March 2019 (Exhibit L) and 14 February 2020 (Exhibit M). After completing his Bachelor of Civil Engineering, he undertook postgraduate study and earned a Master's Degree in Traffic and Pavements Engineering; and a Master of Biomedical Engineering Degree. Mr Johnston's resume featured reference to his fulfilling numerous roles with international road safety research organisations. He has had much experience in giving expert evidence in biomechanics and traffic accident reconstruction. He has conducted forensic investigations for the purpose of reconstructing the causes and circumstances of traffic collisions.
In his first report, Mr Johnston noted that he conducted a view of the incident location (on 6 June 2018) and identified facets of the scene. On the same day, he inspected the area where Ms Khaled had parked her vehicle. On 30 January 2019, he re-attended the scene. He indicated that it was not possible for him to inspect the damaged MB, so he relied upon photographs for this purpose. He relied upon certain technical publications in his library and applied his academic training and professional experience.
Mr Johnston commenced the substantive part of his report by referring to documentation supplied to him, including evidence received from the police and a statement from the plaintiff, as well as her account in the motor accident claim form. He also referred to the statement from Ms Khaled supplied to him; and one of Ms Alameddine.
Mr Johnston had identified a certain location where the collision where the MB struck the tree. This had differed from the location identified by the defendant's expert Mr Sculthorpe, who later revised his opinion (in this particular respect) after seeing Mr Johnston's report, and that of Mr Webb, of the firm Barringtons. The incident occurred 740m north-west of Hazel Street, Lansdowne. Mr Johnston noted a tree with debris around the base which was silver in colour; and this was consistent with the colour of Ms Khaled's MB. Mr Johnston provided certain dimensions of the area: the northbound lane (that in which the UV was identified) was 3.65m in width, and the southbound lane (in which the MB was travelling) was 3.85m in width. The roadway was in good condition and bordered by white painted edge (or 'fog lines') and 2.5m wide sealed shoulders. The road had an approximate 7 degree uphill incline (north to south). Mr Johnston took several photographs. In one of them, southbound drivers, such as Ms Khaled, were on a straight alignment towards the incident scene and the road extended up a slight rise. He noticed that the speed limit on this road at the time of the incident was 70km/h.
Mr Johnston then considered photographs depicting the condition of the MB after the accident. He acknowledged, more than once, that there were certain limitations in his opinions based only upon the photographs that he had been briefed with for his opinion - the photographs were only of average quality and the MB was located at an unidentified remote holding yard.
He had assumed that the MB was in roadworthy condition prior to the subject incident. Damage was observed on both the front left and front right side of the MB. Mr Johnston regarded the damage to the front left side as being consistent with the vehicle's collision with the tree. He observed from the photographs damage in the form of buckling and possibly dents and a paint transfer on the front right mudguard. Mr Johnston considered that there may have been some contact to the front bumper at the front right corner, low down, in the alleged side-swipe collision, which may have distorted the bumper support bracket and may have possibly also contributed to distortion of the front right mudguard. He also considered that the right end of the bumper support bracket appeared to have an uncharacteristic concave shape in front of the missing headlights; and that the right end appeared to have been straightened by angular impact.
Mr Johnston then analysed the incident. He explained, and this seemed to me to reflect common sense, that the methodology commonly adopted was to work backwards from the rest position(s) of the vehicle(s) involved in the incident to determine how a collision occurred, including consideration of such things as the speed of travel and directions that the vehicle(s) was or were travelling. Mr Johnston said that, thereafter, consideration is given to the decisions and perception response of the 'controllers' of the vehicle(s).
Initially, Mr Johnston concluded that the specific damage to the MB from the photographs revealed damage consistent with impact with the roadside tree. This conclusion was not seriously contested. More specifically, he regarded the damage as being consistent with a vehicle travelling from right to left at impact with the tree, which could be consistent with a swerve to the left off the roadway by the driver, or a loss or control to the left. In terms of its speed at the point of colliding with the tree, Mr Johnston noted limitations in research and deployed a 'rule of thumb' calculation from another author (Mr Victor Craig) writing on accident reconstruction, suggesting to him an impact speed of between 12 and 16 mph or 20-25 km/h. This was using a best estimate of crush depth from the photographs.
Mr Johnston then considered the question of impact with the UV. He discounted a suggestion found in the police notes that Ms Khaled had at one point swerved to the right. He confessed to not knowing what happened between the alleged right front corner impact with the UV and the collision with the tree.
After critiquing the evidence contained in Mr Sculthorpe's first report in certain respects, Mr Johnston said that he would not have expected the right-side headlights to have been broken in the left side collision (with the tree). There was some buckling to the right front mudguard, but he did not consider that this was consistent with a direct sideswipe with the UV - any damage from contact with the UV might later have been distorted after impact with the tree.
He did not agree with Mr Sculthorpe's thesis that yellow paint transfer marks were consistent with the car's impact with a yellow bollard. He thought that the marks were probably not consistent with an opposing vehicle impact in the region. By looking at the photograph, he thought that the marks were an imprint of an object pressed against the side of the MB.
On balance, he concluded that the MB was probably involved in a shallow right front corner (or 'corner to corner') impact with the UV. Nevertheless, even if there was no contact, the MB swerved and braked in response to some external action, or lost control on a straight road. A left swerve avoidance measure could be consistent with swerving to avoid an oncoming vehicle on the wrong side of the road.
Thereafter, Mr Johnston said he thought that on the basis of Ms Khaled's recollection of the speed she was travelling, the MB had slowed from 60 km/h to 25 km/h. For an emergency braking, that could take 15 to 20 metres and about 1.5 seconds. He thought that the collision with the tree suggested a severe swerve (by Ms Khaled) and inferred that she lost control of the MB during the response to the initial impact with the UV.
Mr Johnston then considered the level of perception and response time of Ms Khaled once she identified the hazard of the oncoming vehicle. He considered that assuming she was travelling at 60km/h, the MB would have travelled about 32m during the period in which she perceived the hazard before actually responding. Once she did respond (by braking and swerving), the MB travelled approximately 64m from the time when she first perceived the oncoming vehicle to the time the MB struck the tree. The time taken to travel this distance was about 4.25 seconds - a combination of the 1.9 seconds to perceive the hazard and 2.35 seconds to actually respond by swerving and braking. Mr Johnston performed similar calculations about the UV but accepted that there were inherent problems. A further problem with the calculations overall was that it was not known where any collision between the MB and the UV occurred relative to the roadside tree. There was a difference, here, between Mr Johnston and Mr Sculthorpe. If it occurred very close to the tree and if Ms Khaled was caused to swerve sharply to the left to avoid a head on collision, but that there was corner to corner impact with the UV, she may not have had any alternative and could not avoid striking the tree.

[8]

Mr Hall's evidence

The plaintiff also relied upon expert evidence of Mr Christopher Hall, a mechanical engineer. Mr Hall prepared two reports, dated 22 July 2019 (Exhibit N) and 3 February 2020 (Exhibit O). Since completing his undergraduate degree in Mechanical Engineering (with Honours) in 1974, he has been employed or consulted within his speciality for nearly 45 years. He has been Chairman of the National Safety Committee of Motorcycling Australia. He has also acted as an expert witness in many cases, in this country and foreign countries, including cases involving accident reconstruction.
Mr Hall did not examine the incident scene. However, based on Google Maps and an understanding of the location where the incident occurred, as specified by the police, Mr Hall considered that the line of sight for southbound travellers, like Ms Khaled, was 100 to 125m south of the tree and a northbound vehicle would have been in her view for a period of at least 5 and a half seconds or 6 and three quarter seconds. Mr Hall thought it was impossible to determine when, during that period, the alleged UV would have deviated into the Ms Khaled's southbound lane.
Mr Hall opined that the damage to the front left side of the MB was consistent with the plaintiff's version of striking the tree. He considered that Ms Khaled was travelling at a speed of 35 to 40 km/h when it collided with the tree. If, as she said, she was travelling at 60km/h when she veered to her left in response to the actions of the UV, then Mr Hall said he thought that this evidence was consistent with her having braked after swerving and just prior to impacting the tree. Given that she was travelling uphill, the time to reduce her speed (by 20 to 25km/h) was likely to have occurred in around 1 to 1.2 seconds.
He also considered that if, as she said, she steered to the left, it was highly unlikely that she had time to correct that initial swerve before striking the tree.
Having viewed photographs of the damage to the car, and deploying controlled offset barrier testing, the condition of the bumper shroud which he observed at the front right corner of the MB was consistent with a heavy impact with the tree.
Mr Hall considered the evidence of contact on the right side of the MB with a yellow object. On the basis that there was no continuous paint transfer on the undeformed edge of the depression, which indicated that the relative motion of the object against which contact occurred was towards the rear of the vehicle, he thought that this was consistent with the driver's claim that a UV collided with the front of the MB.
The rearward curved nature of the damage, on the right side, was not suggestive of contact with a bollard. If it had, the pain transfer or deformation patter would have been more vertical and less circular in form. The damage was more consistent with contact against the front of a vehicle. Mr Hall added that the circumstance that the damage was only confined to the front quarter-panel of the MB was consistent with Ms Khaled and/or the driver of the alleged UV steering rapidly away from an imminent collision, so that they only had a brief collision prior to separating.
Mr Hall opined that it was not possible to determine where the oncoming alleged UV deviated into the southbound lane.

[9]

Mr Sculthorpe's evidence

Mr Sculthorpe is a motor vehicle 'reconstructionist' with more than 35 years' experience in the investigation of motor accident collisions. For much of that time, he worked as a police officer, but since 1997, he has worked in the private sector generally assisting insurers to identify fraudulent claims. He prepared multiple reports, although his second report (dated 24 July 2019, Exhibit 8), in sequence, superseded his first. This occurred after he was instructed to accept that the scene of the incident was different to the scene identified in his first report. That said, his basic conclusions in his first report were confirmed in his second report. I will focus initially on the report of 24 July 2019 (Exhibit 8) and thereafter his report on 2 December 2019 (Exhibit 9).
Mr Sculthorpe's analysis involved close consideration of statement from Ms Khaled and the plaintiff's description of how the accident occurred in her claim form. He thought that there were a number of matters which Ms Khaled could not account for; particularly about the UV.
Mr Sculthorpe's approach accepted that the actual position of the MB and the alleged UV could not be specified with precision. He preferred to identify them by 'reference area', with the MB being in Area 'A', based upon estimates of time and distance and incorporating 'perception response time' (PRT) and a likely subsequent swerve distance after the alleged contact with the UV. Area 'B' was the area in which the headlights of the oncoming northbound UV would appear over the roadway's crest, when viewed from Ms Khaled's southbound perspective. Mr Sculthorpe estimated that the maximum sight distance between opposing traffic flows over the crest was estimated to be 120m.
Examining the front damage profile of the MB, Mr Sculthorpe considered that the MB struck the tree at a speed of about 30-35km/h. The tree had effectively crushed itself into the front of the vehicle in a way which avoided some of its structural components. If Ms Khaled's speed estimate (60km/h) on her approach towards the UV was accepted, than her speed had reduced by 25 to 30km/h from the moment she commenced her reported evasive tactic to the point of impact with the tree. How this reduction in speed occurred was unknown since Ms Khaled gave no account of it.
Given Ms Khaled's account of the UV 'merging' onto her side of the road and the swerving (to the left) which she said she made to avoid (or limit) contact with the UV, Mr Sculthorpe reasoned that it was axiomatic that there was a Perception Response Time ('PRT'), constituted by the period from Ms Khaled's perception of a hazard requiring an immediate response. Referring to another expert's study (Dr Muttart), and factoring in a range of factors, there was, overall, an average PRT of 1.8 seconds.
Mr Sculthorpe then analysed the likely distance from Ms Khaled's swerve to the impact with the tree. Having matched the maximum bonnet contact crush and the MB's crumpling against the tree trunk, he thought that the MB's nearside body alignment was closely aligned to the tree's eastern side. Assuming, as he did, that she was driving 'normally' southbound, that is, between 600mm and 900mm from the eastern barrier line, having measured the roadway and considered the surrounding environment, Mr Sculthorpe considered that the distance that the MB diverged from its normal position within the southbound lane to the position where it impacted the tree was between 4.5m and 4.8m. When this distance was applied to other variables, including Ms Khaled's initial speed of 60 km/h, the distance travelled during her 1.8 second PRT and after adjusting variables for a 'lateral drag factor' (expressed as a decimal fraction of the acceleration due to gravity) ranging from between 0.15G (for a mild swerve) and 0.4G (for a sudden steering input), when combined with a 4.5m lateral swerve distance, produced the result that the MB was likely to have travelled a total distance of between 53m to 68m from the point of her perception of the UV as an immediate hazard to the end of her swerve impacting on the tree. If the swerve distance was extended to 4.8m, however, and assuming other variables remained the same, the MB was likely to have travelled between 54m to 70m over the same distance.
These calculations did not, however, take into account the significant difference between the MB colliding into the tree at between 30 or 35km/h and at 60km/h due to what Mr Sculthorpe called 'kinetic energy' involved in the MG moving at those speeds. Kinetic energy is, in colloquial terms, the ability of an object to do 'work'. In this context, this meant the damage done to the vehicle. Since the tree was, in effect, an immovable object, increases in speed would lead to exponential increases in kinetic energy. In this regard, the MB had a published kerb weight of 1700kg. If it was moving at 60km/h, its kinetic energy would be 236.2 kilojoules. But if the speed was reduced to 30 or 35km/h, its kinetic energy would reduce to 59.03kj or 80.34kj, respectively. It followed from this, Mr Sculthorpe concluded, that if the MB had impacted with the tree at 60km/h, it would have sustained a multiple of three times the damage it would have sustained had it been travelling at between 30-35km/h.
Mr Sculthorpe said that the discrepancy between speeds could be accounted for by the driver, Ms Khaled, engaging in an evasive brake application. However, he was not prepared to assume that this occurred, given Ms Khaled's omission to refer to it and the plaintiff's recollection of what occurred. Indeed, Mr Sculthorpe noted that according to an excerpt from the plaintiff's written statement, she recalled that the MB did not slow down very much or at all.
Mr Sculthorpe then assumed, in the plaintiff's favour, that there was some minor or relatively superficial contact between the MB and the UV. He reasoned that the physical forces arising from such contact would not have been sufficient to explain the MB's deviation from its pre-contact course beyond its own lane of travel. In other words, Ms Khaled's swerving to the left, on this premise, represented a gross over-reaction to the MB's contact with the UV.
Further, had she attempted to stop the vehicle after the light sideswipe by applying her brake, Mr Sculthorpe believed that she could likely have done so within a distance of 19 metres. This was on the assumption of a 0.75G drag factor. This is what he called the 'Braking Distance'.
Adding the PRT Distance to the Braking Distance yields what he called the 'Total Stopping Distance'. Here, Mr Sculthorpe calculated that this was 49m: adding the 19m Braking Distance to the 30m distance measured from the point where she would have responded to the contact with the UV. In other words, if she applied the brakes, she would very likely have brought the MB to a stop at a distance between one and four car lengths from the tree.
Mr Sculthorpe analysed the point where (Reference Area B) the headlights of the UV might have been identified. There were a range of difficulties with this; including the circumstance that it would have been difficult for Ms Khaled to observe the movement of the UV as it approached through the darkness shortly after it appeared over the crest, until it approached much closer to the MB. He estimated that she would have had less than 2 seconds to observe the UV, if it had been merging or swerving as Ms Khaled thought that it had. This two second interval was what Mr Sculthorpe called her 'UV Observation Time'.
Mr Sculthorpe thought that it was difficult to distinguish Ms Khaled's UV Observation Time from her PRT as they overlapped. However, since Ms Khaled's account was that she responded only after physical contact had occurred, whatever happened prior to the time when contact was made would not need to be included in her PRT. Mr Sculthorpe assumed that if the UV was travelling towards the MB at the speed of 60km/h there was a minimum closing rate of 33.33 metres per second. When applied to a sight distance of 120m (between reference areas A and B), whatever occurred after the headlights of the UV became apparent over the crest of the hill would have had to have occurred within a period of not less than 3.6 seconds.
Mr Sculthorpe assumed that given the vicinity of the scene of the incident to dense native vegetation, including roadside trees, she would, through her 'situational awareness' have been attuned to the imminent danger of a vehicle's errant movement. That being so, if she had been forced to take evasive action in response to the errant movement of the UV, she would have been able to brake the MB to a stop from her reported 60km/h within a distance of 19 metres. As indicated, her Total Stopping Distance was 49 metres. Mr Sculthorpe insinuated that this distance and her situational awareness should have meant that she would apply the brakes. But in the absence of reporting of any brake application, it was inexplicable how she could have reduced the car speed to 30-35km/h prior to impacting the tree.
Like Mr Johnston (and Mr Hall), Mr Sculthorpe did not view the MB, but only relied upon his observation of photographs taken a week after the collision. He accepted that the profile of the nearside (or left side) of the front of the MB was consistent with a frontal impact on a moderately sized tree. However, the MB was tracking in a straight-ahead direction at impact with the tree; and not sliding to its left or to its right. Based upon his estimate of the damage profile, Mr Sculthorpe thought that the vehicle was travelling at between 30 - 35km/h at the point it impacted with the tree.
Mr Sculthorpe distinguished between two categories of vehicle damage: firstly, there was 'contact' damage, whose features were produced during direct physical interaction with other vehicles. Secondly, there was also 'induced' damage, whose features occur as a result of collision forces. Mr Sculthorpe considered that Mr Johnston had erroneously categorised the damage to the MB. I will return to the distinction between these categories later in these reasons.
He thought that, in addition to the speed at the point of impact, both the contact and induced damage features were supportive of the proposition of impact of the MB upon the tree. But the 'offside' front mudguard was still fitted to its upper frame and skirt. It did not display any induced damage. Contrary to Mr Johnston's view, the absence of the front right headlight body was inconsequential.
He also took issue with Mr Johnston's tentatively expressed view that there may have been contact between the UV and the front bumper at the front right corner. Mr Sculthorpe considered that there was no evidence for this and the front right mudguard displaced only 'contact' damage features, not induced damage. He observed light contact scuffs within a shallow indentation immediately behind the mudguard's leading edge. It was not consistent with a side-swipe but, rather, contact with a rounded pole or post. Further, within the rear portion of the front mudguard, there was insufficient information to determine if harmful contact occurred during forward or rearward harmful contact. The damage here was limited to a specific section of the mudguard panel. Mr Sculthorpe also considered that the damage was consistent with contact with a rounded pole or post - a high speed impact by an oncoming vehicle would not have afforded that damage. If it did, all the mudguard's damage features would have exhibited consistent width across the surface from its front to its rear, and would have been of consistent intensity travelling through the damage area, and have been of consistent depth in terms of distorting the panel.
Further, calculating that the collision contact extending the length of the MB's front mudguard would have occurred within 32 milliseconds, it would not have been possible for the UV to damage some, but not all, of the mudguard in that short period.
Mr Sculthorpe considered that the alternative to collision contact was that the front mudguard had been damaged by scrapes and indentations produced during a low speed harmful contact with a yellow object, such as a bollard or signpost within a car park, or some such location.
He referred also to Mr Johnston's view that buckling to the right front mudguard was not consistent with a direct sideswipe. This, Mr Sculthorpe thought, was inconsistent with the claims of the plaintiff and Ms Khaled.
In his summary, Mr Sculthorpe opined that the contact and induced damage features were consistent with one or more harmful episodes of low-speed front contact with a yellow pole or post and the collision with the tree at a speed of between 30 to 35km/h. Further, the damage to the front and right side was inconsistent with a sideswipe or contact with an oncoming UV given that the contact across the front mudguard would have occurred within 0.032 seconds. Since the damage could not have occurred by a sideswipe, the MB was not impacted by the UV in the manner asserted, Ms Khaled's loss of control did not occur in the manner asserted, and the MB did not collide with the tree in the manner reported.

[11]

Mr McDonald's report

Mr McDonald is a consultant civil engineer with expertise in collision reconstruction, road safety policy development and road safety engineering. He holds an Honours Degree in Civil Engineering and a Traffic Safety Certificate. After employment stints in which his duties involved working in motor accident reconstruction, since 2010 he has been an Associate Forensic Investigator investigating the validity of claims, principally low speed collisions.
Mr McDonald also provided multiple reports. The first two were dated 21 September 2016 and 28 November 2019. The defendant was also granted leave to rely upon a limited portion of a report by Mr McDonald dated 24 July 2020 (Exhibit 16). For present purposes, I will primarily concentrate on Mr McDonald's report of 28 November 2019 (Exhibit 10) which subsumed the earlier report of 21 September 2016; noting that the earlier report contained his preliminary views.
Mr McDonald examined the vehicle in which the plaintiff was travelling, as well as the site of the incident. He also reviewed the written witness statement of Ms Khaled.
In his examination of the MB, and with particular reference to the front offside (i.e. driver's side) portion of the vehicle, Mr McDonald considered that the extent of damage was comparatively light. It contained yellow paint transfer; flakes of which were able to be removed from the contact damage.
Mr McDonald thought that the relative speeds between the two oncoming vehicles was likely to be in the order of 140km/h; assuming that each was travelling at 70km/h. Given the relatively light contact that extended over a length of approximately 1200mm on the MB, the contact would have lasted less than 0.03 seconds. At 70km/h, the wheels of the MB would have rotated almost 10 times in a second. Having considered that the front driver's wheel showed relatively constant circumferentially oriented striations around the rim, Mr McDonald considered that the marks were not consistent with a glancing blow between two opposing vehicles. On the other hand, the marks were consistent with contacts against a flat, vertical and stationary surface such as a wall or bollard. Further, the vertical nature of the 'contact' damage, which finished abruptly prior to reaching the driver's door, was also not consistent with contact against another vehicle, and neither was the yellow paint observed in the flakes removed from the MB. The damage to the front nearside (i.e. front passenger's side) of the MB was consistent with damage observed at the reported incident site. It would require the MB to be left out of the southbound lane. Mr McDonald determined that the lateral veer distance would be in the order of 4m and that the time taken to make such an emergency veer would exceed 2.4 seconds. If braking was applied over the same period of time, the vehicle speed would be able to stop from 70 km/h.
Mr McDonald's key findings, therefore were: the yellow paint transfer to the front driver's side was not consistent with impact from another meet moving vehicle; the contact damage on the MB's front driver's side wheel was not consistent with a glancing blow between two opposing vehicles, but was consistent with contact against a flat, vertical and stationary surface; and in the time and distance that it took to veer from the southbound lane to strike the roadside tree, it was likely that the MB could be braked down to speed that would produce much less damage than that which was observed, or would have brought the MB to a stop altogether.
In Mr McDonald's subsequent report dated 24 July 2020 (Exhibit 16), he responded to Mr Hall's report of 22 July 2019. He did not understand why Mr Hall opined that the MB and another vehicle would deflect off each other, pushing any UV away from the MB's 'A-pillar', yet the MB would not deflect away from or deflect a bollard. He also noted that Mr Hall had depicted any UV as initially travelling into the side of the MB. Mr McDonald did not consider that this was consistent with any UV being able to steer away from the MB in the very short time period available, and the absence of any continued damage along the right (offside) side of the MB. Mr McDonald stated that the extent of the generally flat face of the contact damage on the MB was not consistent with impact from the front of another vehicle due to the typical irregular shape at the front offside of most vehicles.
He also disagreed with Mr Hall that it was rare for continuous markings to occur during sideswipe inter-vehicle contact. This was contrary to published research and Mr McDonald's own experience which posited a likelihood of extended length of contact.

[12]

Mr Johnston

In his report dated 14 February 2020 (Exhibit M), Mr Johnston reviewed the expert reports of Mr Sculthorpe and Mr McDonald, the experts for the defendant, as well as that of Mr Hall.
He agreed with, or at least did not dispute, some of the conclusions reached by Mr Sculthorpe. For example, he did not disagree that the speed could have been slightly higher than he had estimated. He agreed with the science of kinetic energy and, on the matter of damage capability, that the amount of kinetic energy present would relate to the magnitude of damage, but he did not agree that it would do so in a linear fashion. That is, he did not agree that there would be 3 to 4 times the damage if there was 3 to 4 times the kinetic energy. He accepted the methodology for calculating 'total stopping distance'. He agreed with Mr Sculthorpe's articulation of the general principle concerning situational awareness.
He thought that there was probably no doubt that the driver did apply the brakes and swerved left prior to the MB colliding with the roadside tree.
On the issue of Ms Khaled's PRT, there were two contentious variables. The first was whether it was night or dusk (although that would only make a small difference). The second was whether it was a straight road or a curve. Based on a curve response and dusk conditions the minimum average PRT time would be 1.1 seconds, compared to the 1.8 seconds assumed by Mr Sculthorpe. The fastest possible PRT would be around 0.7 seconds.
Mr Johnston thought that there was insufficient information to meaningfully calculate Ms Khaled's swerve. Nevertheless, the range of lateral swerve of 0.15 to 0.4g was not unreasonable for a typical swerve; although in an emergency situation it could be greater.
Mr Johnston thought that the presence of the oncoming UV may have excluded braking as a viable option if the immediate objective was to avoid a head-on collision.
Mr Johnston considered that the braking distance was probably shorter as the vehicle had ABS and was breaking uphill. He thought that 0.85g was a more likely value.
On the issue of 'Available Response Time', he did not consider that any meaningful calculations could be undertaken as to time and distance.
Mr Johnston agreed with Mr Sculthorpe's articulation of the principle of situational awareness and surmised that Ms Khaled, if she was situationally aware, would likely have been aware of the roadside environment and presence of roadside trees and would not desirably leave the roadway. However, he disagreed with the notion that a driver faced with a potential head-on collision which he or she perceives is travelling very fast would choose that collision over swerving towards a roadside scattered with medium sized trees.
On the state of the MB, Mr Johnston agreed that damage was primarily longitudinal, but considered that there was at least some yaw associated with serve off the through roadway.
Insofar as damage to the driver's door was concerned, he disagreed that the induced damage did not extend to the right front mudguard. Based upon the photographs and with reference to Mr Sculthorpe's 'Area A', Mr Johnston considered that the damage was more consistent with the transmission of forces rather than direct contact.
On the aspect of the yellow transfer, although there was a defined band of yellow transfer from the back edge of the Area A along the edge of the wheel arch into the 'Area B', it did not extend all the way to the bottom of the damaged region in Area B. The bottom sill area of Area B was undamaged and Mr Johnston thought that the damage could not be consistent with the vertical object such as a wall or post which extends to ground level.
As for the aspect of buckling, Mr Johnston opined that Area B may present an example of such damage where the transfer, which could only occur from direct contact, is visible on the top half of the region of buckling, but the bottom half appeared clean of any transfer or other indicators of direct contact. He disagreed that the damage was consistent with a low-speed impact with a vertical object.
On the matter of the collision time interval, Mr Johnston considered that this had minimal impact on the general nature of the damage.
In response to Mr McDonald's report of 28 November 2019 (Exhibit 10), he noted that Mr McDonald was the only expert with the benefit of examining the actual vehicle and, on that basis, indicated his preparedness to rely upon proper colour versions of the photographs he took as being likely to capture all of the relevant details of damage.
He agreed with Mr McDonald's general description of damage, but reiterated that it appeared to be in a specific horizontal band and, in particular, did not touch the bottom sill. Any vertical structure causing the damage must have interacted with that panel.
He also took issue with Mr McDonald's calculation of the swerve rate (0.126g from Muttart). This may have been an average value but he thought other research and practical experience indicated that maximum steer swerves can be much higher. He also considered that the evidence suggests that braking had indeed been undertaken, and the speed of the vehicle reduced prior to impact.
Mr Johnston considered Mr Hall's final report dated 3 February 2020 (Exhibit O). After this, he concluded that he remained uncertain about an opposing vehicle. He said that there were certain elements as identified by himself and Mr Hall which pointed towards it as a possibility, but he acknowledged that the totality of the damage was "somewhat atypical of the pattern I would expect but not sufficiently so to eliminate the possibility".

[13]

Mr Hall

Mr Hall said in his report dated 3 February 2020 in reply (Exhibit O) that he thought that the yellow flakes removed from the MB may have been specific to a location on the striking object at the height of the decal, but not at the locations above that. Later in this particular report, he commented that the front driver's side wheel contained yellow paint-like chip deposits on the tyre sidewall bead, near the rim lip. If those chips were associated with contact against a struck object, he thought it would have been unusual for them to remain attached to a tyre for a significant period at speed. Therefore, he said their presence was more consistent with an event immediately prior to the collision with the tree.
On the subject of wheel damage, Mr Hall agreed that the front right side wheel would have rotated almost a third of a revolution in a 1.2 metre length contact, but said that at any given time, almost all of the spokes can be in contact with the side of an oncoming car. He considered that damage to the 'most-proud' sections of the rim suggested that it occurred during forward motion. He thought that the lack of damage at the 'proud lower' section suggested that the surface of the striking object did not extend as low as that height and was therefore not fixed to the ground in a singular vertical plane. Because an automobile body would not extend to the ground, but is curved inward towards the lower section of the body, the lack of damage to the lower level of the MB was consistent with contact against another car.
He disagreed with Mr McDonald that the damage was consistent with contact against a wall or bollard. There was no vertical line finishing the damage abruptly near the A-pillar.
He also disagreed with Mr McDonald that Ms Khaled would necessarily have reduced her speed: he thought there was no basis for assuming that she would have braked immediately; particularly having regard to the short time-to-impact scenario involving a vehicle veering onto the wrong side of the roadway.
There was nothing in the reports of the defendant's liability experts which caused him to alter the conclusions of his primary report.

[17]

Disregarding the matter of the yellow paint transfer, was the damage to the drivers' side consistent with contract with an oncoming vehicle?

Otherwise the experts divided.
The defendants' experts, Messrs Sculthorpe and McDonald disputed that the damage was consistent with impact from another vehicle.
Mr McDonald reported that the sill was at a height of 195mm to 250mm above ground level. Contact damage extended to a height of 750mm above ground level and over a width of 1,050mm.
If both vehicles were travelling at 70km/h speed limit, Messrs Sculthorpe and McDonald thought that the closing speed would have been 140km/h. At a closing speed in the order of 100 to 140km/h, a fixed point on the UV would pass the 1,050mm length of damage in 0.031 to 0.038 seconds. During this time, they did not consider it possible for a feature on another vehicle to move along the front offside guard, moving initially slightly outboard on the panel to pass around the front offside wheel and then move inboard into the guard over a length of approximately 90 to 95mm and to a depth of 72mm rear of the front of side wheel, and then return back out over a length of approximately 200mm and not make any ongoing contact along the offside of the vehicle. At a closing speed of between 100 and 140 km/h, the 72mm intrusion and rebound into the panel, over a length of 290 to 295mm would occur in 0.007 to 0.011 seconds. They thought that the 72mm intrusion into the MB was conservative and that the damage was only possible with a low speed difference between the MB and the other object. They attributed the indentations to the front offside guard to contact damage; not induced damage. They thought that the offside mirror of the MB did not show any contact damage with a UV as it passed. They considered that this was very improbable. They also considered that it was very improbable that there would be a vertical feature on the MB that extended from the height of the sill to the top of contact damage: a height of 195 to 750mm above ground level. Further, they considered that the varying alignments of contact marks on the MB wheel were not consistent with contact along another vehicle with a closing speed of 100 to 140 km/h: it was improbable that the marks were produced against a continuing surface, such as the side of the vehicle, given the intrusion behind the front wheel.
Mr McDonald, separately, noted his belief that a force at the front of the driver side guard could not produce buckling to the degrees observed at the rear. The front of the driver side guard did not move rearwards and the width of the guard was narrow at the front and above the wheel. Working from earlier inspections, Mr McDonald found that inward buckling did not occur in the relevant area of panel damage due to rearward force (from another vehicle) at the front of the panel or without direct inwards contact to the relevant area.
In response to this, Mr Hall opined that the buckling was consistent with a rearward force applied at the front of the quarter-panel. Absent evidence to the contrary from the missing bumper shroud, he thought the buckling evidence was consistent with a sideswipe impact with a vehicle travelling in the opposite direction. He disagreed that the mirror of the MB was likely to be damaged if another vehicle was involved. He disagreed with the contention that the contact against the UV would have been along a single vertical edge: he reasoned that there was evidence of multiple contacts at a number of spokes, which meant that more than one vertical alignment came into contact with the MB. He said that as the body parts deflect under load, multiple contact areas can occur. This was consistent with the MB sliding along the side of another vehicle. The puncture damage illustrated in Figure 3 of the report (showing "leading edge of offside sill with puncture") was, he thought, a stone chip that was not associated with the incident.
Mr Johnston agreed with Mr Hall; especially in the absence of the bumper cover which he considered would probably contain the primary evidence of the onset of any such impact.

[18]

The mechanics involved in generating a collision with a UV

Messrs McDonald and Sculthorpe stated that it was impossible for the collision to have occurred as alleged in order to produce the observed damage. Some form of vertical face or edge would need to have passed along the front offside panel, stepped in behind the front offside wheel and then stepped back out again. This was not possible at the magnitude of the speeds claimed.
Messrs Hall and Johnston opined that the damage was consistent with a sliding sideswipe contact at a very shallow angle. It was most likely that the front of the MB came into contact with the UV towards the rear section of that vehicle as it swerved left towards its correct (i.e. northbound) side of the roadway. As the vehicles proceeded to pass each other, the lateral force between them would have been maintained by the rearward swing of the (other) vehicle towards the right. The panels of each vehicle would have flexed and deflected under the contact forces. There was buckling of the front quarter-panel which was consistent with a rearward force applied at the front of the MB. The total time of contact between the two vehicles could have been in the order of 0.07-0.08 seconds, from first engagement at the leading edges of the region of overlap, to last engagement at the trailing edges. This falls within the typical collision period for angled and head-on collisions (0.07 - 0.1 seconds).
Mr Hall, separately, did not accept that the contact with a vertical face or edge along the front offside guard could have occurred without the outer tyre wall becoming scuffed, through contact with the object after initial contact, as the driver attempted to steer away from the object after initial contact.
In reply to Mr Hall, Messrs McDonald and Sculthorpe expressed their view that the observed damage could occur in the event of low speed manoeuvring and contact against a fixed object, such as a bollard, the edge of a wall or a piece of road furniture. Scuffing to the sidewall, as described by Mr Hall, would serve mainly to clean the tyre sidewall; and the tyre sidewall could subsequently build up a fine coat of material in holding yards.

[19]

The yellow paint transfer issues

The experts agreed that yellow paint observed on the outside extended along the front nearside guard for most of its length and contained horizontal striations. Whilst it did not cover the full extent of the damage, it covered large areas of it. All agreed that the paint could be from a feature or area on a vehicle or object that has not been painted with modern automotive paint and may have been covered with some other form of paint or treatment.
Contrary to the first sentence to the answer to question 21, the experts did not agree that the location of the yellow paint was consistent with its having been transferred to the MB from another vehicle. The answers to both questions 21 and 22 make this apparent.
Nevertheless, Mr McDonald and Mr Sculthorpe agreed that although another vehicle could strike the front offside of the MB and leave contact traces, they would not be in the specific areas of the panel in the circumstances alleged. They thought that the length of the contact was too short a length to be possible between two oncoming vehicles; that the contact pattern on the wheel was consistent with contact against a stationary surface; with an overall pattern consistent with a vertical shape.
Mr Hall thought that the irregular distribution of markings on the deformed panel was commonly observed in inter-vehicle sideswipe collisions. The length of time of contact does not affect the pattern (of transfer). It is the lateral speed (velocity) of engagement and thus force which affects the pattern. Markings on the rim spokes were consistent with a short period of rotation of the wheel against the side of another vehicle. Mr Johnston agreed with Mr Hall in these respects and added that if the contact was with the rear quadrant of the opposing vehicle it would always end abruptly as disengagement occurred.
Mr Hall considered that the multi-directional nature of the paint transfer at an individual spoke indicated that the wheel did not come into contact with a vertical pole as that type of contact would have produced only one contact with one angle of paint transfer onto each of the rim spokes. The multi-angled contact indicated that the spokes rubbed along an extended face and this was consistent with contact down the side of another vehicle. Mr McDonald's analysis, he thought, would necessarily result in one angle of striation at each spoke. But here, there were multiple angles and a number of spokes.
Mr McDonald's analysis showed paint traces of four points on the wheel and the resultant angles of striations that would be expected at each point. Three of the four points showed striation alignments which were consistent with the alignments observed on the vehicle wheel. Mr McDonald considered that the marks were consistent with contact against a vertical feature such as a pole.
Mr McDonald - the only expert who had seen the yellow paint firsthand - considered that the yellow paint was of the same type and colour. It was adhered to the MB in the different thicknesses so that some of it was almost transparent, and some of the paint was adhered as flakes. He did not think the paint was consistent with modern automotive paints since it was visibly thicker than paints he had previously observed and it had no clear coat layer which was typical of most automotive paints. Also, it had an undercoat layer that was not typical of paints Mr McDonald had observed.
Having received Mr McDonald's explanation of the nature of the yellow paint fragments which were removed, Mr Johnston commented that there was a difference between the colour of the fragments, which had a plastic-like appearance, and were yellow on the lower surface and white on the outer surface. This meant that on the object that they rubbed off the exterior surface was yellow, but the underlying surface was white. It did not appear that there were two layers but a single layer of material with two different colours on each face. That gave rise to 2 possibilities. Either the surface had to impact two separate objects at two separate times, in order for a second deposit of yellow over the first plastic layer. This indicated two different materials. Alternatively, the object struck would have needed to have had the multiple layers already on that object so that they transferred effectively at the same time.
Mr Johnston considered that there were three different materials present. There were two types of yellow material - one had a white underside layer. This one resembled a plastic film. The other was a more smeared form of yellow transfer, which Mr Johnston thought more likely to be paint type material. The third type of material was black deposit, possibly sourced from road grime or rubber deposit. Mr Johnston thought that the material could have been material from a vehicle wrap or film.
Mr McDonald disagreed that the material was likely to be a wrap type of material. He also disagreed in relation to his description of multiple layers of material. He thought that the fragment appeared to comprise a yellow exterior surface with an underlying white base. As it broke away from the unidentified object and the unidentified object continued past, the flake would have revealed an edge on the broken surface resulting in a yellow scuff against the back of the flake.
Being the only one of the experts to view the paint in situ, he regarded the paint as not being consistent with modern automotive paints as it was visibly thicker than paints that Mr McDonald was used to having observed and measured; without the clear coat layer typical of modern automotive paints. Further, it had an undercoat layer which was atypical for paints he had observed.

[23]

Bumper cover

Mr Hall described relevant parts of the front bumper in terms with which the other experts agreed. In doing so he referred to photos 76, 82 and 83 amongst Mr McDonald's compilation of photographs (Exhibit 15). There were three things: first, a metal bumper (depicted in the photographs with a dark silvery colour). Second, there was plastic moulding (a black colour) and thirdly, a plastic shroud (also known as the bumper cover). It was this plastic shroud which was missing.
There was minor disagreement as between Mr Johnston and Mr McDonald as to whether it was this bumper cover which would have been struck first if another vehicle collided with the MB: Mr Johnston thought that it would have; Mr McDonald did not think that it necessarily had to have been hit first, although he accepted that it would have been struck. As I understood him, Mr Sculthorpe thought it was likely that the bumper cover would have been touched first in a sideswipe scenario.
It was suggested, on the Nominal Defendant's behalf, that with none of the experts having seen the plastic shroud, it was merely a hypothesis to say that it had been damaged as a result of any vehicle to vehicle contact; and that the separation of the bumper cover on the right side could have been caused by the impact with the tree. Mr Sculthorpe, Mr McDonald and Mr Johnston agreed with this: it might have been removed by contact with the tree itself. Mr Hall disagreed however.
There was some confusion whether, at the conclave, the experts agreed that there was a certain raggedness at the front corner of the offside plastic moulding which was consistent with contact from another vehicle. It appeared that the experts accepted that this was a possibility. However, Mr McDonald (with whom Mr Sculthorpe agreed) regarded this as unlikely. He thought that the form of damage here was 'induced', and not 'contact' damage. The outstanding question, about which the experts were uncertain, was impact with what?
On the distinction between 'contact' and 'induced' damage, Mr Sculthorpe explained the distinction in the following terms: 'contact' damage represent physical marks resulting from direct contact with another vehicle and includes scratches, striations and scrapes. 'Induced' damage is created by a collision of forces moving throughout a vehicle manifested in such things as buckling, or bending, fracturing or distortion (T 199).

[24]

Yellow paint fragments

Mr McDonald had removed a paint flake from the MB. He did not consider that the quality of the flake was consistent with vinyls, although no scientific analysis was conducted to determine the matter. Its colours were multi-layered: there was yellow on the outermost lawyer and white underneath. But on another portion of the MB, he observed a yellow coloured smear. He thought that the smearing was consistent with brushing past of an object which was lighter than that which appeared at the area where he removed the paint flake. Where the flake broke away, this was likely to be the result of more force applied and longer contact with the object, in terms of distance from the front of the car (where the paint first appeared on the right side) to where it ceased beyond the smear.
Mr Johnston (with whom Mr Hall agreed on this point) substantially agreed with this, however he took the presence of the multilayers as excluding the possibility that a single contact, with something like a bollard, or post, might produce that as a result. He thought that there was dual contact: at one point there was a chip broken off and deposited onto the MB. Then either another or the same yellow object passed over the top of that chip and left the remainder of a smear across the surface. In other words, whatever object impacted upon the MB needed to have the length or the time to leave two impressions on top of each other. This could be a glancing blow from a car. But Mr Johnston accepted, at least conceptually, that there was nothing improbable if the scrape arose against yellow bollards lined up together, or with a yellow wall often seen in a car park, or even a yellow painted metal fence; at least so long as the object was wide enough.
Mr Sculthorpe accepted that one might exclude a single contact with a bollard, or narrow edge of another object, but considered that the scrapes over the same area over other scrapes was also explicable by multiple contacts with the same object. This might, for example, have involved multiple episodes of harmful conduct, such as the MB being driven forward and scraping a bollard, then stopping, then reversing in a way that involved further contact with a bollard. Mr Johnston (with whom Mr Hall agreed) considered it unlikely that the same object could be hit twice in the manner suggested by Mr Sculthorpe.
Mr McDonald and Mr Sculthorpe agreed that it was more likely that the paint was transferred by continuous contact than a single contact with a single fixed object.
Mr Hall commented that the abrasions that he observed on the photographs of the side of the car were not likely created by a brick or rendered wall. If they were produced by a wall, there would have to have been a smooth surface. On this last point, Mr McDonald and Mr Sculthorpe agreed.
Mr Johnston was referred to his evidence in the joint report (Exhibit K, pp 21-22, in answer to Q19) about his observation, at the wheel spokes, of wrinkled plastic-like material showing both yellow and white colours. Mr Johnston accepted that he raised the point about wrapping to account for the dual layer of colour on the paint flakes. He thought that an explanation for this was a wrap which was commonly applied to vehicles. A wrap can be used to effect a change in the colour or appearance of parts of a car (demonstrated in photos at Figures 10 and 11 of the joint report). Mr McDonald noted that in the few (more than 3 but less than 10) cases of wrapping he had seen, there was only one colour, i.e. yellow only. He accepted there would be a very small proportion of cars on the road that would have a yellow wrap with a white underside. Yellow plastic covering was, however commonly encountered and applied to street furniture, such as bollards, walls and poles since it is an aid to visibility.

[25]

Pattern of yellow paint

Mr Johnston opined that because the yellow paint did not extend vertically as far as he expected it would, there was more likely to have been one continuous object, such as the impact of a car or fence, responsible for the transfer of the yellow paint.
Mr McDonald (with whom Mr Sculthorpe agreed on this point) argued that there was sufficient vertical extension, from the top of the front offside guard to the base of the panel, passing over the sill cover; with the yellow paint being transferred onto the wheel rim. This was consistent with passing a stationary object, such as a post or bollard.
Mr Hall emphasised the abrasions on the wheels indicating two passes in a forward motion: two distinct marks on individual spokes, separated by 30 to 45 degrees in the angle of striation. Further, had there been an individual post extending from ground height to the highest point of the damage, there would have been clear indications of contact damage against the door sill. Photographs showed that the door sill plastic shroud extended significantly outward from the mudguard.
In response to this, Mr Sculthorpe thought that Mr Hall's comments could be consistent with contact between the MB and two items of road furniture, against the rotating wheel. The object or objects that the MB contacted with may not have been vertical all the way to the ground. It might have been a fence, for example, with a space terminating just prior to ground level.
The experts debated whether the sill cover made contact with the object. Mr McDonald said that the sill cover could be flexed back and pressed against an object producing a puncture in the sill cover. Mr Johnston did not agree that there was damage on the sill cover. Mr Hall agreed that the sill cover was bowed out. It could be pushed inwards and returned to its original position, but he said that to force it inward, there needed to be a sideway force; which would leave abrasion marks on the leading edge of the sill.
Mr McDonald noted that the photographs indicated paint transfer along the bottom edge of the mudguard, but nothing significant on the sill.
Puncture marks or abrasions may, the experts accepted, have been contributed to by the circumstance that the damaged vehicle had been moved at least 3 times after the collision with the tree.

[26]

Overall assessments

The questions commonly raised of the experts by the plaintiff's Senior Counsel were, having regard to the totality of the evidence and the various opinions, could they: (a) exclude the possibility that damage to the MB was caused by impact with another vehicle; and (b) determine whether it was likely that damage was caused by vehicle to vehicle contract.
Mr Hall said he could not exclude the possibility and he thought that damage from vehicle to vehicle contact was more likely than not. He emphasised the profile of damage: there was some rearward force at the front of the guard of the MB, causing induced buckling of the guard. That was seen above the wheel arch.
Mr McDonald could not exclude the possibility of the MB striking a stationary vehicle, but not if the vehicles were travelling at speed. What was telling for him was the pattern of striations on the tyre: this was consistent with contact with a stationary object. What was also significant was the extent of the indentation on the right side of the car: he would have expected the indentation to go back further beyond the driver door through the rest of the right side of the vehicle.
On the significance of the striations on the wheel, Mr Hall disagreed with Mr McDonald: he thought Mr McDonald's view did not account for the two abrasions on the wheel at angles of 30 and 40 degrees. He thought that these showed significant movement between two separate contacts.
Mr Sculthorpe did exclude the possibility of vehicle to vehicle contact. With reference to photographs of the right side of the MB (especially Image 5 of his main report), the two areas of indentation were what he categorised as 'contact' damage - not induced damage. Once the anticipated speed of the MB and the other vehicle were factored in (whether it be 60 or 70km/h at the point of contact), it was extremely unlikely within the fraction of time (within 10 milliseconds) for the pattern of the indentations to appear: the pattern was indicative of another vehicle which had 'struck twice'.
Mr Johnston similarly did not exclude the possibility, but appeared more equivocal on the last question: he was not comfortable in expressing an opinion. This required judgment calls on multiple items of evidence. He said that there were factors which pointed both ways. In favour of the proposition was the extent of the swerve manoeuvre and the induced damage along the panel on the car. Against the probability of vehicle to vehicle contact was the transfer of the paint. He did, however, think that Mr Sculthorpe's focus on the nature and extent of the damage, correlated with the time for the contact, read too much into the situation: the time for contact, he thought, was irrelevant.
When asked whether the evidence (of the plaintiff, the passenger) that an occupant heard and felt a bang might influence his view, Mr Johnston responded that there would not be a bang without either an impact with another car or mechanical failure. Mr McDonald considered that this evidence might only affect his opinion if he was to disregard the physical evidence, but it was not for him to assess the credibility of others' evidence.
When asked whether evidence of the swerve towards the tree pointed in favour of the likelihood of vehicle to vehicle contact, Mr Johnston said he thought that the swerve was an evasive manoeuvre in response to some event. That said, he and the other experts did not exclude the possibility that a swerve might be a deliberate act by the driver of the MB. On the hypothesis that there was no UV, the experts agreed that a deliberate act of swerving was more likely than momentary inattention by the driver.

[27]

Nominal Defendant's submissions

The Nominal Defendant reminded the Court that it carried no onus of proof. From first to last, the onus fell upon the plaintiff. This required her to prove that an unidentified vehicle struck the front driver side of the MB. It was not open to the plaintiff to rely upon some other version of what occurred - such as the driver swerving to avoid contact - since that was not only not consistent with the versions given by both the plaintiff and Ms Khaled, but also could not account for damage to the right side.
The Nominal Defendant submitted that a short route to its preferred destination could arise if the Court accepted the evidence of its liability experts, Messrs McDonald and Sculthorpe, that the damage to the right side could not have occurred because of vehicle to vehicle contact with each vehicle driving at speed. Another route to victory was if the Court rejected the evidence of Ms Khaled. This was because the evidence of the plaintiff (and Ms Alameddine), no matter how honest, could not make up for the evidence of the driver of the affected motor vehicle. Further, if Ms Khaled's evidence was rejected, then unless it was found that the damage to the right side could only be explained by collision with another vehicle (which it was not), the plaintiff could not succeed. All hinged, therefore, on Ms Khaled.
The Nominal Defendant submitted that the Court should find that the plaintiff was a victim of Ms Khaled's deception: she believed what she was told, but what she was told by Ms Khaled was false. The plaintiff's evidence was unreliable, not only because the limited aspects of her recollections were improbable, but because an explanation for the improbability was that part of her injuries were such as to impair her recollections. Ms Alameddine's evidence about not observing any damage to the right side of the car prior to the date of the incident was not probative since she could not pinpoint a particular reason proximate to the date of the incident why she would have seen the condition of that part of the car.
The Nominal Defendant submitted that the Court could not, however, accept Ms Khaled's evidence. Her absence of recollection of the details of any collision with another car went beyond the implausible and bordered on the absurd. It submitted that she was proven to be a liar when, in evidence, she denied informing the plaintiff that the colour of the other car was yellow. A question arose as to why she might lie. The Nominal Defendant submitted this was because she needed to construct a collision that did not happen.
The Nominal Defendant acknowledged propounding a version of events - the driver had a dishonest design of driving the vehicle into a tree to exacerbate pre-existing damage to the right side in order to write it off and facilitate an insurance payout - which was not only inconsistent with the plaintiff's version, but was an inherently grave version. Nevertheless, this did not derogate from the ultimate onus of proof. It remained for the plaintiff to prove that her version of what occurred was more probable than the Nominal Defendant's alternative version; no matter how inherently grave the latter was.
The Nominal Defendant submitted that once Ms Khaled's evidence was rejected, the Court was entitled to find that this was fatal to the plaintiff's case, unless the expert evidence was such that vehicle to vehicle contact was the only explanation for the damage on the right side. However, in this case, the expert evidence was at best equivocal: it was best encapsulated in Mr Johnston's evidence that he could not exclude the possibility of vehicle to vehicle contact, however he was not comfortable in ascribing greater probability to it than damage by some other object.

[28]

The plaintiff's submissions

Senior Counsel for the plaintiff started by acknowledging that in the ordinary course, the plaintiff did carry the onus of proof if the issue was only whether or not an unidentified vehicle was involved. However, the position changed once the Nominal Defendant ran a case that the driver intended to defraud an insurance company. Reprising an argument he had run before me, which I had rejected in an earlier interlocutory application, he said that this alternative version of how the collision with the tree occurred needed to be pleaded. If it was pleaded, then the Nominal Defendant would carry the onus of proving that case.
The plaintiff submitted that it was proper to start with the lay evidence. He argued that, ultimately, parts of the lay evidence affected the experts' views or, put another way, it filled in the gaps to their opinions which were unavoidably dependent upon the physical evidence. That being so, there was contemporary evidence by the driver in the form of what she told the police (Exhibit C) after the accident which was not only consistent with what she told the Court, but which supplied some further detail: she told the police that the other vehicle was of a light colour and said that it had crossed into her lane; and she said that it struck at the light on the front right hand side of the MB. Naturally, her recollections diminished over time, but the account given to the police - whose correctness was not specifically challenged by Senior Counsel for the Nominal Defendant - could give the Court confidence that her account to the Court was true. It was unlikely that its content would have been concocted between the time of the collision with the tree and the time the police arrived.
The plaintiff submitted that the dishonest or fraudulent design ascribed to Ms Khaled could not be supported by any motive. There was no benefit to her in driving her car into a tree. She could have simply explained to an insurance company that she was careless and she would get her payout, if that was what she wanted. The amount of 'mud' thrown at her on behalf of the Nominal Defendant was unwarranted. The Nominal Defendant could not show that she was aware of prior incidents involving family relatives in making claims for insurance; and in relation to this car, she left it to her husband to sort out details about the price for the purchase of the car and the extent of insurance coverage.
Senior Counsel for the plaintiff accepted that it would be open for the Court to find that Ms Khaled was an unsatisfactory witness, but submitted that part of that might have been attributable to language barriers. The plaintiff submitted that her case did not wholly depend upon acceptance of the driver's version in any event. The plaintiff's evidence, by itself, could lead the Court to accept that there was an unidentified vehicle which struck the car in which she was travelling and which caused the driver to swerve towards the left and strike a tree.
The plaintiff referred to the consensus between the experts on many things. Senior Counsel urged me to focus on the joint expert report and the concurrent evidence, which crystallised the limited issues which required the Court's determination. The evidence on the subject of the bumper bar, though it might have been determinative if the bumper bar had been tested, was inconclusive. He submitted that the evidence about the yellow paint was not really conclusive either. Senior Counsel focussed on features of the damage and urged that once the lay evidence was included as part of the Court's overall consideration, the plaintiff discharged her ultimate onus. Senior Counsel emphasised the damage (and lack of paint) on the sill, in contrast with the yellow paint on the mudguard above it. This was an indication that went against the theory of the Nominal Defendant's experts that it was a vertical stationary object which produced the damage. Another important piece of the physical evidence was the swerve. It was submitted that the experts agreed that it was likely that the suddenness of the swerve was likely to have been generated by a particular event, rather than fatigue or inattention.
If, however, the experts assumed that there was a bang, then that could only be explicable because of a collision with a vehicle or mechanical failure, and this would provide the necessary additional, non-scientific evidence which the experts might need to accept that what was merely possible - the vehicle to vehicle contact - was indeed probable.

[30]

The plaintiff

The plaintiff struck me as an honest witness. She made many concessions which were appropriate; such as when she conceded that what she had declared as correct in her claim form was substantially sourced in what Ms Khaled had told her. But I doubted the reliability of her recollections. This, I thought, was partly attributable to the nature of the injuries she sustained as a result of the accident, which included a loss of consciousness after the collision with the tree. It was also partly attributable to the effluxion of time since the accident and when she gave her evidence. This was illustrated when, after being asked to elaborate on her evidence that she 'felt' the impact of collision with a UV, she referred to backwards movements of her body. I regarded that as being most implausible. It had not been remarked upon in any earlier statements she had given (such as Exhibit A). Towards the very end of her cross-examination, I thought she backtracked and accepted that she could not recall whether the impact of a hit from a UV caused any movement to her body. This did not, however, impinge upon my assessment of her honesty. Given the matter of seconds between the time that the MB swerved from the road until it hit the tree, it would have been difficult for her to recall detail of what occurred even if she had not been subsequently injured after the MB struck the tree.
Towards the end of her cross-examination, there appeared to be some blurring between what she actually recalled and what she was told by Ms Khaled. For the most part, I formed the view that there was a distinction between what she actually recalled which, in fairness, was not a great deal, and what she was told by Ms Khaled, but, as I have said, towards the end there was some blurring. This was a clear instance where there was a risk that anything Ms Khaled told her after the accident, when she was enduring substantial personal injuries, might affect her recollection of what occurred (for better or worse). Her evidence needs to be carefully considered as to each of its constituent parts, rather than by way of some sweeping generalisation.
I generally approach her evidence with circumspection.

[32]

Ms Khaled

Ms Khaled, the driver, was an unsatisfactory witness. I lost count of the number of times that she peppered her evidence with "I don't remember" or "don't recall". That circumstance, by itself, may not be illuminating, particularly where the subject accident occurred 4 years ago, but when the absence of memory relates to matters that the witness was intimately involved in, there comes a point where a declared absence or failure of recollection comes to resemble a convenient incantation to avoid scrutiny. I consider that this occurred with this witness' evidence. It was accepted that Ms Khaled was not injured as a result of this incident. No medical evidence was relied upon to explain any cognitive or other disability that might have explained the considerable times that she was unable to assist the Court.
I speak here, in particular, of the circumstances in which she purchased the MB, how it was financed, and the amount it was covered for with the insurer. Initially, her position was to disclaim knowledge and deflect responsibility to her husband. But the content of the interview with Mr Clout in which she participated (albeit in an interrupted fashion) only 6 weeks after the accident suggested a much more specific awareness of the circumstances in which it was acquired (and insured). Further, she disclaimed any meaningful recollection of what it was she was intending to do on the night of the subject accident, such as which restaurant she was intending to travel to and by what driving route she might take. She further disclaimed any real recollection of the circumstances in which she had herself been in an earlier motor vehicle, in April 2015.
As to the accident itself, the extent of her recollection was so poor as to cast doubt upon her reliability. This was not just a case of her giving evidence at this hearing, but even in her statement to the investigator on 20 July 2016 about two months after the incident: she could not really recall whether the alleged oncoming vehicle had headlights on; she could not assess its speed or tell its distance away from her at the time she saw it; she was ambivalent as to whether the other car was on the other side of the road; and she had nothing to say about the occupant(s) of the other car, its colour or make. All she could recall that the UV struck her car. By what circumstances the collision occurred, she was entirely ignorant. Such absence of recollection, for someone who (unlike the plaintiff) was not injured was inherently surprising. In my view, at best, she was either not trying or, more likely, stonewalling since she did not wish to answer the questions.
The position worsened when Ms Khaled denied that she had informed the plaintiff, or her lawyers, that the colour of the alleged UV was yellow (T 112.19). Earlier in her evidence she said that she did not see the colour of the other car. This was consistent with what she said to an investigator (Exhibit D, answer to Q128, T 113.6). But it could only have been Ms Khaled who had informed the plaintiff and/or the plaintiff's lawyers that the other car was coloured yellow: the plaintiff had said it was Ms Khaled who had informed her and the first page of a letter sent to the plaintiff by her lawyers (Exhibit 4) referred to the yellow colouring of the car. The plaintiff had also said that the content of the claim form (including the diagram), which alluded to a yellow car, was substantially based upon what Ms Khaled had told her. Then, in re-examination, Ms Khaled gave evidence to the effect that she had only inferred that the other car was coloured yellow after inspecting the damage. But this evidence was inconsistent with her earlier having told an investigator that she had not seen any yellow paint transferred from the other vehicle to the front driver's side of the MB after the accident (Exhibit 3, Answers to Q167-168). On a matter of such forensic significance, these inconsistencies were not trivial. The inconsistencies are plainly adverse to her credibility overall.
I do not accept that the unsatisfactory nature of her evidence can be attributable to difficulties in translation - I thought she understood well enough what was being put to her - or the natural diminution in recollections, as suggested on the plaintiff's behalf.
The Court cannot repose confidence in her evidence; unless it be corroborated, or is consistent with the objective facts.

[33]

Standard of proof

There are certain inter-related principles relating to the civil standard of proof that I apply to a case such as this.
First, the standard of proof in a civil case requires that the tribunal of fact be actually persuaded of the occurrence of the events alleged: Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at [361]-[362]. That is influenced by the factors set out in s 140(2) of the Evidence Act 1995 (NSW), which themselves reflect matters identified by Dixon J. This is not ultimately attained if the circumstances, at most, only give rise to "conflicting inferences of equal degree of probability so that the choice between them is a matter of conjecture": there must be a 'reasonable and definite' inference [4] . In McLennan v Nominal Defendant [2014] NSWCA 332, in an analogous factual context (i.e. live dispute whether a claimant was personally struck by an unidentified vehicle), Emmett JA said (at [86] - [87] [5] , with citations omitted): "[86] A court is not authorised to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied... [87] A judge is not always bound to make a finding one way or the other with regard to the facts averred by the parties. It is open to say that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. While it may be undesirable to decide cases on the burden of proof if one can legitimately avoid having to do so, there are cases in which, owing to the unsatisfactory state of the evidence, deciding on the burden of proof is the only just course for the court to take. It may be that, when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated, the improbable explanation may be accepted. However, that state of affairs must be shown to exist. Further, the legal concept of proof of a case on the balance of probabilities must be applied with common sense. Before a trial judge finds that a particular event occurred, he must be satisfied on the evidence that it is more likely than not to have occurred. If the trial judge concludes, on a series of cogent grounds, that the occurrence of an event is extremely improbable, a finding that it is nevertheless more likely to have occurred than not does not accord with common sense. That is particularly so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden..."
His Honour's remarks have particular salience when I later weigh the expert evidence.
Secondly, it needs to be recognised that there is a natural limitation in the Nominal Defendant's ability to produce evidence. This does not mean that the Nominal Defendant is in any special position, but it does mean that the evidence of a plaintiff must be approached with care before it can be accepted [6] . This may be regarded as a manifestation of the general aphorism from the rule in Blatch v Archer regarding the weight to be attributed to evidence based upon the party's capacity (and, logically, incapacity) to generate proof.
Thirdly, the Nominal Defendant asserts that it would be open to the Court to find that a critical witness for the plaintiff, being the driver (but not the plaintiff), was dishonest or fraudulent in the sense that she had a design to deliberately damage the MB in order to obtain an insurance payout. That is, plainly, a grave allegation [7] and has to be assessed in accordance with the terms of s 140 of the Evidence Act. As indicated, s 140(2)(c) encompasses the reasoning in Briginshaw v Briginshaw. A finding that a witness has engaged in dishonest conduct is not lightly to be made [8] .
I do not agree with the plaintiff's submission that the Nominal Defendant's suggestion that such finding is available to the Court means that the onus of proof, evidentiary or legal, shifts to the Nominal Defendant to disprove that there was an unidentified driver on the basis of such finding. As was pointed out in Nguyen v Tran [2018] NSWCA 215 at [64], in an analogous case, raising the proposition that Ms Khaled deliberately drove the MB into a tree does not serve to reverse the onus, cast upon the plaintiff, of proving that there was a UV. The gravity of the Nominal Defendant's suggestion that a design to inflict deliberate damage is an explanation for why the subject vehicle collided with the tree is only one of a number of circumstances that need to be considered, overall, when assessing whether the plaintiff has proven the existence of an unidentified vehicle and, if so, whether she also established that the conduct of the other vehicle in striking the MB caused Ms Khaled to veer off the road and collide into a tree. The position would be different if, for example, the insurer had paid out proceeds on a policy on the basis of a fraudulent statement made by Ms Khaled and subsequently sought relief under s 118(2)(b) of the Motor Accidents Compensation Act 1999 (NSW). In that case, the onus of proof would fall upon the insurer to prove the fraudulent statement. But that is not the case in this matter.

[34]

The plaintiff

In my view, it is not practicable to resolve this case by considering the expert evidence alone without reference to lay evidence. It became apparent that the liability experts were influenced, to a degree, in their opinions, by the lay evidence; or at least, their opinions have to be evaluated in the light of the lay evidence. Before weighing the competing expert evidence, it is first necessary to evaluate the lay evidence.
Although I accept that the plaintiff was honest in giving her evidence, her evidence that the MB was struck by an unidentified vehicle was unpersuasive. A striking feature of her evidence was that, making allowances for the relative darkness, she had no recollection of seeing any car shortly before or at the point where she said she heard or felt an impact. She was substantially reliant for her belief and understanding as to how the collision occurred - including (but not limited to) the question of whether any unidentified vehicle was involved - upon what Ms Khaled had informed her. This was plainly evident from Ms Khaled's extensive involvement in helping the plaintiff to answer the claim form. It also appeared that the plaintiff's solicitor obtained information sourced from Ms Khaled, including information about the colour of the alleged UV (Exhibit 4). Further, Ms Khaled was not a stranger to her, but a friend whom she actually (and reasonably) trusted. She had no reason to second-guess what Ms Khaled told her. She did not strike me as having any enquiring, let alone suspicious, cast of mind which would lead her to test her own recollections. This is a case where there was a real risk that, unwittingly or otherwise, such recollections as the plaintiff independently had of what occurred was influenced or, to put matters more crudely, contaminated by what Ms Khaled subsequently informed her.
Secondly, the content of her recollection was limited. As noted, she expressly disclaimed seeing an oncoming car notwithstanding that, on her case as to where the other vehicle struck the MB, she was only a few metres away from it at the point of impact. Her evidence rose no higher than she: (a) saw headlights from an oncoming car; and (b) 'heard' and 'felt' impact on the right side of the car. Her recollection of the headlights was weak evidence. I expect that even at the time of the night (and time of year) at which this driving occurred, conceivably there was one or more cars that passed the MB along that stretch or road, with their headlights on; even if it was a dark weeknight in autumn. As to the sensations she alluded to in her evidence, they really amounted to one and the same thing: the 'feeling' was engendered by a physical sense of the car being struck. She said in her re-examination that the impact with the other car caused her body to go backward and hit her head (T 50-51). However, there was no evidence of prior complaint of this particular matter (see Exhibit A, para 18) and, as I say, in my view, her actual recollection of what, if any physical impact her body felt merely by contact with the alleged UV was inhibited by her loss of consciousness which later occurred. Another reason for doubting this evidence was the evidence of the experts, who all agreed that if there was vehicle to vehicle impact prior to the collision with the tree, the natural motion of a front seat passenger in the plaintiff's position was for her head to tilt forward, or perhaps forward and on an angle to the point of impact (T 236-237). The plaintiff's evidence was to the contrary. I am not satisfied that she felt impact from any collision, prior to the impact of colliding with the tree.
The strength of her evidence - that she heard an impact - has to be assessed in a context where she said that did not see it. This I regard as inherently surprising and implausible. The circumstance that she recalled hearing the impact from the right does not add to the strength of the evidence. If, as she declared in her claim form (on this point she was wholly reliant upon what Ms Khaled told her), the other vehicle veered across on to the wrong side of the road, it was much more likely that the point of impact with the MB would be the right hand side than the left side of the MB.
An explanation for her limited recollection is that she suffered from the problem of being unconscious after the collision with the tree. The Nominal Defendant relied upon some medical evidence identifying complaints of head injury and dizziness (Exhibit 13) to support the complaints. In applying my common sense, I consider that this circumstance itself casts doubt upon the reliability of her evidence describing, after a state of unconsciousness, how the collision with the tree occurred. I do not accept that the plaintiff heard the impact of contact by another vehicle on the MB.
Having regard to its influence upon the plaintiff, in my view, a matter of much more significant importance is my assessment of the evidence of Ms Khaled. But before I turn to my evaluation of her evidence, I will consider first the evidence of Ms Alameddine.

[36]

Ms Khaled

I now turn to the evidence of the driver of the MB, Ms Khaled. First, I do not consider that it would be open to me to accept the plaintiff's fall back case that there was an UV that crossed the double lane on the roadway into the southbound lane, but that, without the UV contacting the MB, Ms Khaled attempted to evade the unidentified vehicle and steered it off the roadway. This was not the evidence of Ms Khaled, nor the plaintiff. Further, it did not seem to me that the experts were asked to consider a scenario of the MB steering off the road without contact of an unidentified vehicle. To the contrary, the plaintiff's case has been, and must be, that it was the reaction to the MB being struck by a UV which caused Ms Khaled to steer the MB off the roadway, or there is no case at all. There is no 'intermediate' alternative available to the plaintiff, as a hedge, in the manner raised by Senior Counsel for the plaintiff in his opening.
Second, I note that at its highest, and subject to some suggested qualifications, all that Ms Khaled recalled, in terms of the circumstances in which the collision with a UV occurred, was that it crossed over the double line and struck the MB. She told Mr Scott in July 2016, two months after the incident, that could not say when she first saw the UV, how far it strayed across to the southbound lane, the sex of the driver of the UV, whether it had any occupants, whether it had its headlights on, what speed it was travelling at or its make. The qualifications to this lack of information were contrary indications in her evidence that she thought it was light-coloured - she had mentioned this to the police - and (after the accident) she noticed that there was yellow paint on the front drivers' side and that the oncoming vehicle struck her on the right side. I do not accept those indications.
As to the first two qualifications, her evidence about identifying a light, or yellow coloured vehicle and subsequently seeing yellow paint was internally inconsistent. This was, as I have previously indicated, egregiously so in relation to the yellow paint. As I have found, in my view, I considered that she lied when she said in her re-examination that she concluded that the oncoming car was coloured yellow after she inspected the damage, since her evidence was not only at odds with what she told the investigator, Mr Scott on 20 July 2016 (Exhibit D, answer to Q 128), but was glaringly inconsistent with what she said to Mr Clout in August 2016 (Exhibit 3, which comprised answers to Q 165-168).
As to the second qualification, that the on-coming vehicle struck her on the right side, for the same reason as I did not place significant probative value when that evidence was given by the plaintiff, so too, I do not give it significant value here: on Ms Khaled's account that she asks the Court to accept, it seemed to me, that the UV could only have struck the MB on its right side.
It follows, without reference to anything else but simply by reference her lying and to the account that Ms Khaled invites the Court to accept, her recollection was too vague and imprecise for the Court to accept that the MB was struck by another vehicle to facilitate a reasonable level of satisfaction that it was true.

[37]

Other circumstantial evidence

But there was more evidence which went against Ms Khaled's account. I have mentioned, more than once, what I find was that she lied about her belief that the yellow paint that she saw on the MB was produced by a UV. There are other circumstances occurring at or about the date of the incident which place that lie in context and generally cast doubt upon her personal credibility and, more significantly, the plausibility of her account as to why the MB collided into the tree - the plaintiff's 'unidentified vehicle' thesis. The following matters emerged during the course of Senior Counsel for the Nominal Defendant's pursuit of its own thesis that the driver's design may have been to deliberately damage the car.
First, contrary to her denial, I find that she knew of the price paid to the vendor of the MB. Although she said she was not privy to the negotiations, which she said her husband carried out on her behalf, she went to Queensland to acquire it (a matter which she initially equivocated about under cross-examination: T 55.31 - 55.50). The purchase, and subsequent registration, of the MB was made in her name and there was nothing to objectively indicate that the source of funds for the payment came from anyone else. She told Mr Clout that the sum of $15,000 was paid for the MB (Exhibit 1, answer to Q48, T 83.39).
Secondly, there are significant difficulties in the path to accepting her evidence that it was her intention to drive to a restaurant for dinner. This is not to say that she did not say to the plaintiff that this was her purpose. Ms Khaled recalled no detail at all about the dining arrangements, at any time. She could not pinpoint a name for the restaurant, although I acknowledge that she said she was proposing to spell a name when she spoke to one of the investigators. I do not consider that it was a coincidence that it was at the point during Mr Clout's interview with Ms Khaled when questions were asked about the intended dinner that Ms Khaled's brother-in-law intervened in the interview (Exhibit 1, Questions 118-138). She could not indicate any address (see also the next paragraph below) for the restaurant, or explain that a booking was made. She had never been there before. Her explanation that she received a recommendation to go there from her husband was one of many instances where she explained herself by reference to the conduct of her husband, who was not called as a witness by the plaintiff. But although the questions about the intended venue for dinner were probed in multiple interviews with her, it was curious that, prior to giving evidence at trial, she apparently did not inquire of her husband the restaurant that he recommended that she should attend. She said that she did not know the direction - she had to rely upon the 'Maps' application on her mobile phone. The date of 17 May 2016 fell on a Tuesday. At the point where the collision occurred, it appears that Ms Khaled had some significant distance to travel to get to the restaurant which she had, vaguely, noted to be somewhere in Liverpool. The plaintiff's Senior Counsel estimated that she was half-way there at the time of the collision of the tree. She estimated to the police that the time of the incident was 8:15pm. If the intention was to have dinner, the dinner must have been at a relatively late time, but no reason was advanced for why it needed to be so late. There was no evidence independently put before the Court to support the proposition that there was in fact a restaurant open on an autumn Tuesday night in Liverpool.
Further, I do not accept her evidence that she unthinkingly allowed herself to be guided by the 'Maps' app on her mobile phone in order to get there. First, to use the Maps app, she would have needed a name or address to insert into the app. She could not give evidence of either. Having reviewed the Google Maps images tendered by the Nominal Defendant (Exhibit 6.1 - 6.2), the direction that she actually travelled to get to Henry Lawson Drive from her residential address, in order to head in a southerly direction towards Liverpool, took significantly longer than the most direct route to get to Henry Lawson Drive for the purpose of travelling in that direction towards Liverpool. But as was pointed out to Ms Khaled in cross-examination, the roadway for the more direct route was surrounded by houses; whereas the roadway along Henry Lawson Drive accessed by her taking the Hume Highway route was a heavily wooded forestry area (Exhibit 6.3). I do not accept Ms Khaled's evidence that the navigator on the Maps app on her mobile phone would have taken her along a route (to Henry Lawson Drive) that was twice as long as the more direct route to Henry Lawson Drive. The Google Maps image - Exhibit I - tendered by the plaintiff did not assist the plaintiff's case since the place of the incident, around Lansdowne Park, fell outside the most direct route that Ms Khaled could have taken to get to Henry Lawson Drive for the purpose of travelling south towards Liverpool. I consider that there was deliberation in her approach to Henry Lawson Drive, by driving up the Hume Highway. The route that was actually taken, in terms of the time it would take for her to get to Henry Lawson Drive from her home, for the purpose of heading south towards Liverpool, was quite circuitous.
Thirdly, I find that, contrary to her subjective view that she was not subject to financial stress at the date of the incident, Ms Khaled had very limited financial means. She was unemployed. Her husband was unemployed. She received a Centrelink benefit, but that benefit went towards payment of the rent. She said that the husband paid for food, but there was no evidence to indicate his financial resources to do so. Her husband did not receive a Centrelink benefit. Between herself and her husband, she had approximately $200, as an aggregate, in two statements of account (with the CBA and St George) at the relevant time. She said that she could turn to her husband if she needed money, but no evidence was supplied to substantiate the implied assertion regarding his capacity to pay her. I also reject her evidence that she did not perceive financial stress as being self-serving.
Fourthly, she had prior experience with profiting from bringing an insurance claim for damage to a motor vehicle if the damage was to be significant enough that it was written off. She had been involved in an earlier accident (1 April 2015) in which she received a payout (Exhibit 14). It appears that she received a very substantial sum - approximately $59,000: Exhibit 11. I do not accept her evidence that she was ignorant of the sum of money that she received.
In this regard, Senior Counsel for the Nominal Defendant urged upon me the proposition that, contrary to her denial, she was aware of a range of related motor accident claims by other family members. The Nominal Defendant was not, however, able to establish Ms Khaled's actual awareness of these other claims; so although I have my suspicion, I am not able to reject her evidence which effectively denied her awareness of those other claims.
Fifthly, she accepted in re-examination (T 135.12), and I find, that at the time when the MB hit the tree, she was aware of what the MB was insured for. This was established to be the sum of $38,000 (Exhibit 2).
Sixthly, I rejected Ms Khaled's evidence that, following the swerve away from the alleged unidentified vehicle, she continued to drive at normal speed. This was contrary to the evidence of both of the plaintiff's liability experts, Mr Hall (who considered that she had slowed to 35-40km/h) and Mr Johnston (who considered she had slowed to 25km/h) prior to colliding with the tree; which was consistent with the probability that she applied the brakes prior to impacting upon the tree. The Nominal Defendant's liability experts also considered that the speed of the vehicle had reduced prior to colliding with the tree, which was consistent with braking. In the joint report, the experts were not definitive about the actual speed of the MB prior to it leaving the road and colliding with the tree, but each of them had opined that the speed had reduced before impacting upon the tree. They all agreed that she had the time to brake, following the swerve off the road prior to hitting the tree. I accept Mr Sculthorpe's evidence that if Ms Khaled's evidence about continuing at normal speed after swerving off the road was right, than the damage to the car (and its occupants) would have been substantially more extensive than it was. The circumstance, which I find, that Ms Khaled applied her brakes is consistent with her retaining her presence of mind and a capacity to engage in deliberate action. That provides some support for the Nominal Defendant's theory that although she had intended to damage the car, it was only for the purpose of ensuring it was written off and that she had misjudged the speed by which the MB should slow down. Had she continued to drive at the normal speed (70km/h) as she said she did after any contact with another vehicle, this would be consistent with the proposition that prior contact with a UV might so disorient her as to lead to a complete loss of control over the speed of the car.
The combination of these circumstances leads to a not implausible inference that Ms Khaled had the motive, the knowledge and the opportunity to obtain a profit (representing the difference between the purchase price and the pay-out, after the excess, on the Coles Car Insurance policy) by colliding the over-insured MB into a tree in circumstances where the insurer might find it difficult to dispute that she had an innocent explanation for the vehicle being written off. It is, I wish to stress, unnecessary to make a final adjudication on the point. Before any such adjudication could be made, it would need to factor in the counter-intuitive circumstance that, on the Nominal Defendant's theory, she had a design to deliberately damage the car and had such confidence that she could carefully calibrate the speed of the vehicle, in swerving off the road, so as to have the car written off but at the same time, avoid catastrophic injury to her friend and herself; or, alternatively, she was reckless as to the prospect that she might injure her friend or herself.
Nevertheless, the doubts that surround aspects of her testimony that I have referred, individually and cumulatively, to further strain credulity and exacerbate my general concerns as to her credibility and reliability.
Although he accepted that the Court might find that she was an unsatisfactory witness, Senior Counsel for the plaintiff sought to rehabilitate Ms Khaled's credibility by reference to the police report she gave at the incident site. That document was admitted (Exhibit P), but not as evidence of the truth asserted (T 248.11). This evidence was more contemporaneous than the interviews she subsequently gave. It at least contained some detail which was not inconsistent with later versions supplied to investigators or her evidence in Court and its correctness was unchallenged.
I do not accept the submission that I should accept the content of the report on the basis that it was unchallenged. That matter is not one of form, but of substance. There is no doubt that the Nominal Defendant put to Ms Khaled that the substance of her account of how the MB collided with the tree was false.
Further, it may be accepted, as a rule of thumb, that the force of contemporary accounts proximate to a subject incident can more than offset deficiencies in a witness' subsequent versions, including testimony in Court, when recollections notoriously fade. But there are two difficulties here for the plaintiff. First, Ms Khaled's account to the police was not substantially of greater detail than her subsequent versions. Secondly, and more fundamentally, the assumption underlying the rule of thumb is that the witness is credible. For reasons indicated, the assumption does not apply to Ms Khaled. I do not accept that Ms Khaled should be regarded as being any more credible when she spoke with the police than when she subsequently gave accounts to investigators and, finally, to the Court.

[38]

Summary of lay evidence & forensic consequences of its assessment

I am not persuaded from the lay evidence that an unidentified yellow vehicle struck Ms Khaled's MB in a way that caused her to steer the MB off the roadway towards the tree where it collided, to the extent that it is not corroborated by other evidence.
A question becomes what follows from this rejection. Senior Counsel for the Nominal Defendant submitted that, subject to a qualification I will shortly turn to, it meant the end of the plaintiff's case. Senior Counsel for the plaintiff submitted I could find that the plaintiff's version independently could be said to support its case. I do not agree. For the reasons indicated earlier, notwithstanding my view that she was an honest witness, her evidence was unreliable in many substantial respects, and this was substantially explicable by the fact that the source of her evidence was not her independent recollection but what Ms Khaled had told her.
The qualification of Senior Counsel for the Nominal Defendant was that the plaintiff's case could conceivably be salvaged if the physical evidence compels the Court's acceptance that the damage to the front right driver's side was explicable by a vehicle to vehicle impact with another vehicle travelling, at ordinary speed, along the roadway, and veering into the southbound lane.
For the following reasons, ultimately, the final opinions expressed by the experts are not such as to yield the result that the physical evidence is consistent only with the plaintiff's theory of the case. At its highest, the expert evidence only gives rise to competing possibilities. The plaintiff is unable to rely upon the expert evidence as a makeweight for the inadequacy of the lay evidence. Indeed, it seems to me to be a circular process of reasoning for the plaintiff to contend that the expert evidence can substitute for the inadequate state of the plaintiff's lay evidence where the weight of the expert evidence ultimately depends upon acceptance of the plaintiff's lay evidence.

[40]

General impressions of the experts

Before proceeding further, I should state my general impressions of the experts and identify the points that were in contention between the experts. All of the liability experts were more than satisfactory. There was no question about any of their expertise, competence or their integrity. All appeared comfortable in the concurrent evidence procedure. Further, they all appeared to have, to a degree, a reasonable or high level of regard for each other.
As I noted in an interlocutory judgment during the trial, Mr McDonald had a clear advantage in being able to actually see the damaged car; an opportunity not available to the other experts. It was his sample of photographs which, by the time the experts had conferred, was accepted as having the highest quality.
It was difficult to separate the quality of these experts. Nevertheless it appeared to me that Mr McDonald might be regarded as the leader of the two on the Nominal Defendant's side. This was evident in the expert written reports when Mr Sculthorpe provided extensive endorsement of Mr McDonald's opinions. As to Mr Sculthorpe, as I read his qualifications, they were not to the same academic level of the other experts, but by the same token, he had a great deal of practical experience and, I thought, wisdom, which, to a large degree, emerged from this days working for the police. To a similar degree, I thought Mr Hall also substantively endorsed Mr Johnston's views. I was impressed with Mr Johnston's preparedness to make the concessions against the interests of the plaintiff who engaged him, which emphatically conveyed the impression that his views were balanced. During the 'hot tub' phase of evidence, on more than one occasion, Mr Hall gave evidence which appeared to be in conflict with the other three experts. That was doubtless a testament to his independence, but in such instances, I considered that I would need to be very careful in accepting his opinion where it was at odds with the opinion of the other three experts.

[42]

Mr Hall's issues

One matter with which I have had some difficulty is Mr Hall's point regarding multiple yellow marks on individual spokes in the rear wheel. This, he thought, was not consistent with abrasion with a single object. Mr McDonald considered that the transfer to the wheel was in a pattern consistent with passing a stationary object (T 219.38 and 233.33) and Mr Sculthorpe considered that the markings on the wheel could be consistent with contact with two objects, or multiple contacts with one object (T 220.17). Senior Counsel for the plaintiff suggested that Messrs McDonald and Sculthorpe were changing their evidence, away from their earlier theory that there was a single contact with a vertical post. I did not regard such change as being material. Their general predisposition has been to find a stationary object as being the source for contact with the MB - I did not understand their earlier views to preclude the possibility that there was more than one such object, or multiple contacts with such an object.
In the Joint Report, (at p 18) Mr McDonald responded to the point of traces on four points of the wheel; three of which showed striation alignments consistent with the alignments shown on a vehicle wheel.
Plainly, there is disagreement between the experts on the point, but in my opinion, Mr Hall's view has not been demonstrated to be so clearly preferable to Mr McDonald's view as to require its acceptance.
Ultimately, however, the evidence of the experts explaining how the yellow paint marks were transferred to the MB was inconclusive.
The second matter of concern was that damage was located on the mudguard, but not on the sill cover. But Messrs McDonald and Sculthorpe both noted that the sill panel was of a different material to the mudguard, and was capable of rebounding into its earlier undamaged shape, with little force applied (T 219.35, 220.28 and 223.23). With reference to Figure 3 in the joint report, Mr McDonald also noted a hole in the sill cover, with grey flakes coming out of it consistent with the sill cover being flexed backward and pressed against something, like a bolt, underneath it to produce a puncture (T 221). Mr McDonald accepted that he has been hypothesising the existence of a bolt or screw behind the puncture mark, but it was one undertook having examined other Mercedes vehicles. It was unsurprising, so he insinuated, that damage might be observable on the sill cover, but not the mudguard, but this did not exclude the possibility of contact with the sill cover.
I considered that the evidence of Mr McDonald and Mr Sculthorpe cogently addresses Mr Hall's point as to the absence of damage on the sill cover.
I therefore do not find that Mr Hall's analysis is so compelling as to elevate the possibility of vehicle to vehicle contact to the level of probability.

[44]

Other matters

If I am wrong in rejecting Mr Hall's opinion that vehicle to vehicle contact was probable and Mr Johnston's opinion that it could be probable based upon two variables, I propose to round off my consideration of the expert evidence by briefly stating why, if pressed to choose, I prefer the view of Messrs Sculthorpe and McDonald that it is not possible to elevate vehicle to vehicle contact to the level of probability.
Contrary to Mr Johnston, I prefer the evidence of Mr Sculthorpe and Mr McDonald that attached weight to the profile of the damage. There was unlikely to have been enough time for there to be the two separate indentations identified on the reasonable assumption that the vehicles were each moving at around 60 or 70km/h. I am also surprised that the damage to the right side of the MB was not more extensive than it apparently was if there was a sideswipe. I prefer Mr McDonald's view to Mr Hall on the aspect of how typical continuous markings are likely to occur during sideswipe inter-vehicle contact, and accept that collisions of the purported kind were more likely to involve an extended length of the right side of the car (T 233.38). Mr McDonald substantiated his opinion by reference to literature in this respect [9] . I also find it surprising that, if vehicle to vehicle contact occurred on the offside, there was no contact with the driver's side mirror. Mr Hall did not find it surprising, but his view was premised upon his belief that it was the rearward contact of another vehicle that caused the damage which view was not compelling. I note also that, on the matter of profile of damage, Mr Johnston's opinion in his report in reply was that the damage he viewed was that it was 'atypical' of the pattern he would expect to see from vehicle to vehicle contact.
This being so, I find that the state of the physical evidence which the experts agreed is incomplete in certain material respects (the missing bumper bar) or in assumptions (the speed at which the MB careered towards the tree) or, viewed at its highest for the plaintiff, of such ambiguity (the profile of the damage) as to give rise to equal competing possibilities as between vehicle to vehicle contact between moving vehicles or contact (single or multiple) with a stationary object. That being so, having regard to earlier findings I made about the lay evidence, the plaintiff's claim fails on the facts and it is unnecessary to pursue other questions of liability.
If I am wrong, and if there was contact with an UV that had crossed on to the lane in which the MB was travelling in, I find that there was no negligent conduct in Ms Khaled swerving off the road. This struck me as the most natural, if not instinctive reaction to being struck by the rear side of an oncoming vehicle crossing over into the southbound lane. Even if, theoretically, there may have been enough time to avoid the tree if the brakes had been promptly or properly applied, which was at least possible, allowance has to be made for the circumstance of panic, if not alarm (on the stated premise) Ms Khaled would have endured. Thus if there was an unidentified vehicle which had crossed the road and collided with Ms Khaled's vehicle, then I would have found that the Nominal Defendant caused the MB to collide with the tree. On those two premises, I did not understand the Nominal Defendant to submit to the contrary.

Mouzakzak v The Nominal Defendant

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)

Cited By (1)