Simoes v Kel Campbell Pty Ltd; Simoes v Moon

Court of Appeal (NSW)|2018-05-21|Before: McColl JA, Basten JA, Lonergan J, Coll JA

Solicitors: CMC Lawyers (Applicant) KPL Lawyers (Kel Campbell Pty Ltd) Sparke Helmore Lawyers (Brian Moon) File Number(s): 2017/262699; 2017/262706 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 1 September 2017 Before: Gibb DCJ File Number(s): 2016/38448; 2016/191492

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Factual findings

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

(a) evidence of tanker driver

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

(b) applicant's evidence

Mr Simoes in his evidence-in-chief described the accident in the following terms: [5] "So I travelled from Randwick to Ramsgate and I travelled west on Bestic Street and came to a - came to the intersection of Bestic Street and West Botany Road and I came to a stop at a red light, a very brief stop, very, very brief stop, as basically as soon as I came to a - to a complete stop, the - the light went green and I proceeded through the intersection. … … I noticed the truck to my left travelling north on West Botany Street and I noticed he wasn't going to come to a stop and I applied the brakes as soon as I had a chance, and the truck collided with the - with the passenger side of my vehicle."
Mr Simoes had made prior statements inconsistent with this account. The first, made to his general practitioner, Dr Cawood, may have been of limited weight; the second, made to a police officer investigating the accident, contradicted his evidence in court and was likely to weigh heavily against his credibility. In his defence, he said that he was inebriated at the time that the officers visited him at home and took the statement. He called his partner, Ms Justine Surin, to confirm that he was not sober on the evening on which the police visited them.

The first proposed ground of appeal dealt with the manner in which the trial judge dealt with a statement recorded in the medical records of the applicant's general practitioner, whom he visited seven days after the accident. The full record relevant to the accident was as follows: "MVA last sat had c spine x-ray only pain now left lef- fibula mid-shaft slight swelling lateral also pain lateral inside knee no idea how accident happened"
The first line of the record referred to a motor vehicle accident on Saturday, 20 December, which was correct. The final line, if it correctly recorded what the doctor was told, implied that the applicant was not, a few days after the accident, confident that he had entered the intersection on a green light and had been hit by a truck running a red light.
It is commonly the case that limited reliance is placed on statements recorded in medical histories as to how a particular accident occurred. As explained in Container Terminals Australia Ltd v Huseyin [6] there are a range of reasons for taking that approach, including: "(a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made); (b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort; (c) the histories did not make reference to the questions which elucidated the replies; (d) the material recorded was a summary of answers rather than a verbatim recording, and (e) there may be a range of factors, including fluency in English, the practitioner's knowledge of the background circumstances of the accident and the patient's understanding of the purpose of the question, which will affect the content of the history."
The proposed ground of appeal complained that the trial judge observed no such "caution" in her approach to the medical records of 27 December 2014, despite acknowledging that the note had not been put to the applicant in cross-examination.
To assess this complaint it is necessary to understand how the medical record was deployed at the trial. The applicant gave evidence that he had visited Dr Cawood at Darlinghurst Medical Centre a few days after the accident. He said nothing in his evidence-in-chief about the history taken by Dr Cawood.
The cross-examination based on Dr Cawood's note was limited to the absence of any record of many of the physical complaints which the applicant claimed to have suffered following the accident. The challenge to his account of entering the intersection on a green light instead focused on a second statement, namely one made to the police in April 2015. In submissions in this Court, counsel for Mr Moon noted that there had been no cross-examination about the final line in the record because the medical record had been tendered by the applicant himself.
The same points were raised in the course of submissions at trial, set out by the trial judge in her reasons. Ms Kumar, appearing for Mr Moon, had submitted that the record revealed "another inconsistency" in the applicant's evidence. Counsel for the applicant complained that there had been no cross-examination as to that point, but later conceded that, having tendered the records, he could not object to the defendant raising the issue as a matter going to reliability.
The judge set out the evidence, the exchanges with counsel and continued: [7] "I infer that Mr Simoes either said specifically, or led his general practitioner to believe, that he (Mr Simoes) had 'no idea how accident happened.' …. That is, however, of some relevance to his credibility in the circumstance where he says that he recalls now that he had a green light, and by implication that Mr Moon had a red light."
There was no error in the judge treating this evidence as relevant to reliability in circumstances where the statement had been tendered without reservation or explanation by the applicant. There was, as the judge also noted, no suggestion that the applicant had been deliberately lying in his sworn testimony. The first ground identified no plausible error.

(d) second appeal ground

The proposed appeals alleged a failure of the trial judge to advert to specific evidence given by an independent witness, Mr Paul Schofield. Mr Schofield was, at the time of the accident, stationary at the lights on the north side of the intersection, facing south down West Botany Street. He had stopped at a red light. Mr Moon had given evidence that as he entered the intersection, travelling north on West Botany Street, there was a green light in his favour and a green right-hand turn arrow allowing traffic to turn across in front of Mr Schofield into Bestic Street travelling east. The evidence that Mr Schofield had a red light was therefore consistent with the possibility that Mr Simoes was facing a green left-hand turn arrow and a red light preventing him going straight ahead. The judge noted that fact. [8] It was not a matter of great significance.
Relevantly for present purposes, the second proposed ground complained that the judge had "ignored" the evidence of Mr Schofield, who had stopped after the accident and approached the applicant and heard him say repeatedly "I saw a green light." That evidence, it was submitted, contradicted the judge's finding that the applicant "now" (that is in giving evidence at the trial) believed he had a green light, implying that he did not hold that belief on earlier occasions.
It is not apparent that any reliance was put on the evidence of Mr Schofield in the course of submissions at trial. (This Court was not taken to any reference as to how his evidence had been relied upon.) That it was not accorded significance by counsel for the applicant was understandable. It was true that at various stages Mr Simoes believed that he "saw" a green light. He told police that he saw a green light, but believed it was the call light on his iPhone. It is also likely that the left-hand turn arrow for his lane was green at the time he sought to cross the intersection. His evidence at trial was that "the light went green", meaning the light which permitted him to proceed across the intersection. Speaking colloquially, he might have exclaimed, "I had a green light," or "my light had turned green". However, the statement, "I saw a green light", as reported by Mr Schofield, was capable of bearing quite a different meaning. It was at best ambivalent for the applicant. The failure of the judge to place reliance upon it was of no significance. The second ground lacked substance.

(e) third appeal ground

There was, the applicant noted, a red light camera at the intersection which was not activated when his vehicle entered the intersection. That was said to provide independent evidence to support the applicant's account. He submitted that the trial judge had ignored that evidence.
In fact, the evidence did not support such a complaint. The trial judge identified three factors indicating that the applicant was unreliable in his account. (The second concerned the use of the medical record and has already been addressed.) The first concerned the sequence and phasing of the traffic lights. That matter was explained in the judgment in the following terms: [9] "First, the other evidence as to the sequence of the lights is that the left turning light preceded the westbound round traffic light, by at least 30 seconds. But Mr Simoes has no recollection of seeing a left turning arrow at all …. Exhibits C and G show that there was a turning arrow signal facing Mr Simoes when he stopped in the kerbside lane. On Mr Simoes' evidence he stopped because of a red (round) light. The left-turning light would have activated before the round light turned green to let him move forward. The photographs … show that the left turning light is illuminated for more than 30 seconds before the main (round) signal turns green. Mr King said the same."
Both Bestic Street and West Botany Street had two lanes in each direction. Mr Simoes was on the inside lane on Bestic Street, which had a left turn arrow separate from the round lights permitting vehicles to cross the intersection. As the judge noted, the westbound traffic signal on Bestic Street remained red for 35 seconds after the left turn arrow had changed to green. An officer from Roads and Maritime Services, Mr Paul Hayes, was asked whether the camera would capture a vehicle going through the red light and crossing the intersection from the inside lane which had a green left turn arrow. Mr Hayes stated: [10] "In that scenario if a vehicle is in the left-hand lane and it is travelling at a low speed, it is assumed to be turning left. That threshold is 30 kilometres per hour for vehicles. … So, they allow - there is an assumption that a vehicle turning left will be moving at a relatively low speed and in that circumstance if a vehicle is travelling at a low speed and it has a green arrow it, it literally does not collect the incident."
Mr Hayes confirmed that evidence in cross-examination. The effect was that because Mr Simoes' vehicle had stopped before he entered the intersection, he would have moved forward at less than 30kph, so that his attempt to cross the intersection would not to be recorded by the camera. Indeed, it is common sense that a red light camera must be programmed not to pick up vehicles that legitimately enter the intersection to turn left. The evidence was sufficient to explain why the applicant could enter the intersection against a red light, but not trigger the camera. Ground three lacked substance.

(f) fourth appeal ground

The third matter relied upon by the trial judge affecting the reliability of the applicant's account involved a statement made by the applicant to police on 11 April 2015. Police came to his home at about 9.20pm that evening and took a statement which was recorded by the officer in a police notebook. The answer given to the first question was consistent with the evidence he gave at trial. After giving his account, he was given a warning by police and further questions were asked: "Q. You mentioned a green light. Can you describe or explain what this light was? A. I think it was the green answer light for an incoming call on my iPhone 4. The phone was mounted in a hands free [cradle] in the centre of my windscreen. I saw the green light, but I can't explain it, but it was like a trigger in my head. I thought it was the traffic light & I just instantly accelerated." He was then asked if he was taking medication (he was, for cracked ribs), whether he had drunk alcohol (he said no) and what injuries he had suffered. The final question and answer were as follows: "Q. Other than what you have told me, is there anything else out of the ordinary that could have contributed to the accident? A. No, I can't explain it, but it was completely my fault." The applicant signed the statement at 9.53pm
The applicant was cross-examined as to his answer to the second question, concerning the incoming call on his iPhone 4: [11] "Q. … Do you agree that you told Constable Ferguson that? A. Not exactly that. Q. But do you agree with me that you've signed it? A. I have signed it. Q. And that you've adopted this as-- A. I've used the word mobile phone and, and red light. That's about as much as there is in that. Q. So you said mobile phone and light? A. I used the words mobile phone and red light, but I did not say any of that. Q. So what did you say about the mobile phone and the red light? A. That conversation is an attempt, it's my attempt to come to a conclusion how I managed to run a red light, apparently, and triggered a red light camera as, as Constable Ferguson informed me prior to the, prior to the interview. Q. But you do agree that you've signed it? A. I have signed it, yeah, while I was intoxicated. Q. And you've - well, it doesn't say anything about that here, does it? A. Well, I did inform him that I was intoxicated. Why is that not in there?"
The cross-examiner also put the final admission of fault to the applicant asking: [12] "Q. … Did you say those words? A. I'm sorry, I'm sorry, was the, was the officer interviewing me about, in regards to the car accident or was he interviewing me in regards to running a red light and triggering a red light camera? Q. Well, he's asking about the contribution to the accident. So he's asking-- A. Ma'am, that's not the context of the conversation, I'm sorry. He, the, Officer Ferguson informed me that I had triggered a red light camera."
The cross-examiner returned to the question of being informed that he had triggered the red light camera: [13] "Q. Do you agree with me that there's nothing about a red light camera and triggering a camera in this notebook, is there? A. No, but he certainly did inform me of it - Q. Well-- A. --before he interviewed me. Q. But is it the case that at this stage you didn't know whether the red light camera had triggered or not? A. Of course I know it didn't. I never received the fine. Q. But at this time, as of 11 April-- A. That's four months later. If there was a picture of me, I would have received the fine. Q. Then why have you said, 'No, I can't explain it, but it was completely my fault'? A. Because Officer Ferguson told me that I triggered a red light camera. So why would I argue with the officer and defy him? If he's saying that I ran a red light camera, obviously it happened."
The trial judge assessed this evidence in the following terms: [14] "Mr Simoes' credit and reliability is not enhanced by his evidence that he was so intoxicated when he spoke with the police that I should disregard what he said, but, I should nonetheless accept as reliable his recollection of specific statements made to him by the police officer. It is in that context that his (Mr Simoes') statement is explained as his 'attempt to come to a conclusion how I managed to run a red light, apparently ...'. There is a significant tension inherent in that explanation. It is difficult to reconcile Mr Simoes' assertion of intoxication with his evidence about having specific recollections of: (i) his conversation with the police officer when the statement was made; (ii) certain things being said by the police officer, and (iii) his (Mr Simoes) not having wanted to sign the statement, which he did sign and initial at various locations …. His position is complicated by the contradictions in his explanation for his intoxication. He says that the police officer arrived at about 10:30pm after he came home after having been 'at an outing. I was at the Bondi Icebergs for my partner's colleague's birthday.' His partner said that 'it was approximately 10pm at night' and they had 'been in Alexandria.' The police attended at about 9:20pm (exhibit 6). Mr Simoes signed the statement at 9:53pm (exhibit 4). There is some contemporaneous corroboration for the contents of the statement in the police notebook. Mr Simoes said that he had had 'cracked ribs' and had been taking Panadol and oxycontin for the pain' as well as being 'not very well rested at the time due to [his] ribs & not being able to sleep' (exhibit 4). His treating general practitioner had prescribed endone on 13 December 2014 for a broken rib, and had warned him about addiction and drowsiness …."
The proposed grounds of appeal alleged that the evidence recorded in the police notebook should not have been admitted unless the judge was satisfied that the admission and its making were not influenced by "violent, oppressive, inhuman or degrading conduct" as provided in s 84(1)(a) of the Evidence Act 1995 (NSW).
Apart from the fact that the evidence provided an inadequate basis for such an objection to admissibility, the trial transcript revealed that the police notebook with the statement of 11 April 2015 was admitted without objection. [15] In re-examination counsel for the applicant raised the issue of sobriety at the time of the police interview. As he sought to explore the circumstances of the signing in further detail the judge said, "if you're going to allege duress it needs to be dealt with properly." [16] Counsel said "I'm not suggesting duress".
The proposed grounds of appeal alleged that the applicant's evidence as to the circumstances of the interview was "unchallenged". It was given in cross-examination and was challenged. The judge, for unimpeached reasons, did not accept it. In these circumstances, the ground of appeal challenging the admission of the police notebook was without merit.

(g) fifth appeal ground

The fifth proposed ground of appeal alleged error in failing to allow the applicant to adduce evidence from his de facto partner, Ms Surin. The evidence was to be directed to some unidentified aspect of the conversation between the applicant and the police officer "relevant as to the issue of the circumstances in which the admission contained in the police notebook statement was made." It was alleged that the evidence was "clearly admissible under s 81(2) of the Evidence Act".
At the trial, Ms Surin gave evidence of two events. The first related to Mr Simoes' state when he returned home after the accident on 20 December 2014; the second related to the visit of the police officers in April 2015. Ms Surin was asked where she and the applicant had been on the latter occasion and how much the applicant had had to drink. The following exchange then took place (Mr Thompson being counsel for Mr Simoes): [17] "Q. Did you observe any conversation between Mr Simoes and the police officer? A. Yes, parts of conversations. Q. Were you present during the whole of the conversation? HER HONOUR: You're not going to be doing that unless you're calling the police officer. THOMPSON: May it please your Honour. Nothing further."
This exchange was uninstructive. It was curious that, having been told that the witness was present only during "parts of conversations", counsel (who had called her) then asked her if she had been present during the whole of the conversation. The judge's intervention appeared to assume that she knew where the questioning was going. This Court was invited to assume that Ms Surin was then going to be asked questions about what the officer had said to Mr Simoes before the statement was recorded, and was indicating an intention to disallow such evidence unless the officer were to be called. Even more curiously, counsel accepted the implication that he would not be allowed to proceed to adduce such evidence without seeking to explain what the evidence would be, or why it was admissible. There was no material before this Court revealing what questions Ms Surin might have been asked and what answers she might have given had the matter proceeded.
The apparent curiosity of this exchange is explained, however, when it is read in context. The relevant context, which has already been adverted to, involved the following sequence of events: (i) the applicant had given evidence of his conversation with Constable Ferguson during the course of the 33 minute interview (Tcpt, pp 75-78); (ii) the statement in the police notebook had been admitted without objection (Tcpt, p 81); (iii) counsel for the applicant had attempted to raise further matters in re-examination, but denied he was seeking to allege duress on the part of the officer (Tcpt, pp 84-85); (iv) the further questions had not been stopped but had continued and had been the subject of further cross-examination (Tcpt, p 86); (v) immediately following the end of the cross-examination Ms Surin was called (Tcpt, p 87) and (vi) the exchange which is set out above then occurred (Tcpt, p 90). All that occurred within a reasonably short period, as the sequence of the transcript references shows. Without knowing precisely what evidence Ms Surin would have given it is impossible to conclude that counsel appearing for the applicant was under any misapprehension as to what the judge had in mind, or that the applicant suffered any miscarriage of justice by his counsel's ready capitulation. (It is to be recalled that Ms Surin had categorically contradicted the applicant as to the prior events of the evening.)

(h) other evidence

The remaining evidence was that of a Mr King. Mr King was an independent witness. He had been driving west on Bestic Street, behind the applicant. He came to a halt when approaching West Botany Street because he said "we had a red light." [18] He was then taken to the moment of the accident. He said that he heard a "thump or crashing noise" but that his vision was blocked by cars between him and the applicant's vehicle. He believed that there were three cars in front of him when he came to a halt, indicating at least two cars between him and the applicant. [19] Having indicated that he heard the sound of the impact, his evidence continued: "Q. Do you recall what colour the lights were at the intersection, that is the lights that faced you on Bestic Street? A. I'm sure they were still red at the time of the incident."
In cross-examination it was put to Mr King that his attention was focused on the brake lights of the car immediately in front of him and not on the traffic lights. He was asked if there was a chance that the lights had turned green but he had not noticed. He accepted that it was a possibility. [20]
The trial judge placed weight on Mr King's evidence. He was a coach driver by occupation; he was independent of both parties; he was familiar with the intersection because he travelled to and from work along Bestic Street on a daily basis. [21] The judge summarised the evidence in the following terms, noting that Mr King was happy to concede "the possibility" that he did not observe the lights change for a second or two: [22] "Mr King was not directly challenged on his evidence that the westbound traffic signal light was red when he came to a stop after having heard the collision, although he was challenged about what he saw before the collision …. In re-examination, Mr King was firm in his recollection that he did not see the lights change colour between the time he approached (seeing the red light) and the collision …." Whether relevantly challenged or not, Mr King was an impressive witness, whom I found to be reliable; and whose evidence I accept." The judge immediately passed from a consideration of his evidence to make the following findings: [23] "I find that the westbound (round) traffic signal light was red both on Mr King's approach to the lights (relevantly behind Mr Simoes' vehicle) and when Mr King came to a stop after having heard the collision. Absent a malfunction in the lights or an inexplicable delay between various observations sufficient to allow for the traffic lights to run through a relevant cycle, the (round) westbound traffic light was red when Mr Simoes entered the intersection. … The most likely explanation for the accident is contained in the police statement …. The plaintiff believed that he had a green light. Sadly, he did not."
There was no ground of appeal challenging the reliance placed by the trial judge on Mr King's evidence.

Conclusion

The proposed notice of appeal in each matter contained five grounds relating to liability. For the reasons set out above, the grounds were without merit. Whether taken individually or in combination, they did not support an arguable case that there had been a miscarriage. The cumulative effect of the evidence provided ample support for a finding that the applicant was in the wrong and had proceeded across the intersection in defiance of a red traffic light.
The applications for leave to appeal in both matters should be dismissed. The applicant must pay the respondent's costs in each matter.
LONERGAN J: I agree with Basten JA.

Endnotes

District Court Act 1973 (NSW), s 127.
Judgment, p 5.
Judgment, p 6.
Judgment, p 5.
Tcpt, 25/07/17, p 53(10).
[2008] NSWCA 320 at [8].
Judgment, p 8.
Judgment, p 6.
Judgment, p 7.
Tcpt, 26/07/17, p 171(50).
Tcpt, p 75(10)-(30).
Tcpt, p 76(15).
Tcpt, p 77(6).
Judgment, pp 9-10.
Tcpt, p 81(36).
Tcpt, p 85(6).
Tcpt, p 90(1)-(10).
Tcpt, p 137(13).
Tcpt, p 137(5).
Tcpt, p 145(5)-(20).
Tcpt, p 136(30)-(45).
Judgment, p 12.
Judgment, pp 13-14. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2018

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