Nominal Defendant v Saleh [2011] NSWCA 16 (17 February 2011)

Last Updated: 25 May 2011

Court of Appeal New South Wales

Case Title:	Nominal Defendant v Saleh
Medium Neutral Citation:	[2011] NSWCA 16
Hearing Date(s):	24 February 2010
Decision Date:	17 February 2011
Jurisdiction:
Before:	Beazley JA [1] Giles JA [2] McColl JA [3]
Decision:	1. Appeal allowed. 2. Set aside the verdict and judgment for the respondent of $1,333,398 and the order that the appellant pay the respondent's costs. 3. Remit the proceedings to the District Court for a new trial on all issues. 4. Costs of the first trial to be at the disposal of the judge conducting the new trial. 5. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. [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.]
Catchwords:	TORTS - negligence - motor vehicle accident - whether unidentified vehicle caused plaintiff’s accident - whether verdict in plaintiff’s favour sustainable APPEAL - appellate review of findings - whether errors in process of fact-finding - whether denial of procedural fairness -whether defendant deprived of fair trial - whether substantial miscarriage of justice APPEAL - appellate review - natural justice - whether denial of procedural fairness - whether case determined in plaintiff’s favour substantially on points not raised by plaintiff and not identified by primary judge at trial - whether primary judge acted of own motion absent cross-examination or submissions by plaintiff to reject evidence of defendant’s witnesses - whether failure to consider parties’ submissions - whether failure to give party opportunity to deal with potential adverse finding - whether primary judge’s conclusions favouring plaintiff’s case soundly based APPEAL - appellate review - whether denial of procedural fairness to defendant to award plaintiff substantially more than amount sought for head of damages EVIDENCE - expert evidence - opinion - whether factual basis for expert opinion established - whether facts expert relied on to form opinion “sufficiently like” facts established at trial EVIDENCE - expert evidence - report admitted without objection - oral evidence adduced without objection - whether open to primary judge to reject opinion on basis factual foundation not established EVIDENCE - cross-examination - failure to cross-examine - whether trial judge may reject evidence not challenged in cross-examination - whether rejection of evidence not challenged in cross-examination may lead to wrong finding of fact
Legislation Cited:	Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adamson v Ede [2009] NSWCA 379 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Dixon v Whisprun Pty Ltd [2001] NSWCA 344 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Harrison v The Nominal Defendant (1975) 50 ALJR 330 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Jobst v Inglis (1986) 41 SASR 399 John v Rees [1970] Ch 345 Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 Knight v Maclean [2002] NSWCA 314 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Nominal Defendant v Swift [2007] NSWCA 56 Palmer v Dolman [2005] NSWCA 361 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Re Architects of Australia Association; Ex parte Municipal Officers Association [1989] HCA 13; (1989) 63 ALJR 298 (also known as Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; [2003] HCA 6; (2003) 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Rebenta Pty Ltd v Wise [2009] NSWCA 212 Reid v Kerr (1974) 9 SASR 367 Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Shimokawa v Lewis [2009] NSWCA 266 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; [2007] VSCA 181; (2007) 17 VR 492 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; (2002) 23 NSWCCR 463
Texts Cited:
Category:	Principal judgment
Parties:	Nominal Defendant (Appellant) Khoda Saleh (Respondent)
Representation
- Solicitors:	Solicitors: Sparke Helmore Lawyers (Appellant) Milicevic Solicitors (Respondent)
- Counsel:	Counsel: GM Watson SC with JE Hynes (Appellant) G Miller QC with J Jobson (Respondent)
File number(s):	2009/298283
Publication Restriction:

Contents

NATURE OF THE CASE	[6]
LEGAL PROPOSITIONS	[13]
THE PRIMARY JUDGMENT
Issues	[31]
Liability	[33]
Police sketch	[37]
Assessment of witnesses	[40]
1 Mr Jaouhar	[41]
2 Mr Collin	[52]
3 Miss Cirino	[59]
4 Expert evidence	[66]
(a) Lane of travel and speed of the plaintiff's vehicle	[76]
(b) Whether physical contact occurred between the plaintiff's vehicle and an unidentified vehicle	[77]
(c) Relevant events leading up to the collision with the power pole	[78]
(d) Was the driver of the unidentified vehicle negligent?	[79]
(e) Was there contributory negligence on the plaintiff's part?	[80]
Due inquiry and search	[81]
Damages	[89]
ISSUES ON APPEAL	[96]
SUBMISSIONS	[99]
Submissions of the respondent	[105]
Due inquiry and search	[113]
Contributory negligence	[115]
The course of the trial	[117]
SOME PRELIMINARY REMARKS	[137]
CONSIDERATION
Lay witnesses
A Miss Cirino	[143]
A1. Inconsistencies as to own speed	[150]
A2. Inconsistencies as to sounds heard	[166]
A3. Reliance on "inconsistent" evidence regarding sounds heard	[175]
i. "Screeching" and "revving"	[176]
ii. "Motors" plural	[183]
A4. The darkness	[187]
A5. Headlights	[195]
A6. Handbrake	[198]
B. Mr Collin	[210]
B1. Speed	[212]
B2. Description of the accident	[219]
(i) The possibility of two cars	[223]
(ii) Failure to see the skid or loss of control	[229]
(iii) The darkness and the headlights	[230]
C. Mr Jaouhar's evidence	[234]
Expert witnesses
D. Mr Keramidas	[249]
Rejection of Mr Keramidas' report	[250]
D1. Failure to tender transcript of Mr Jaouhar's evidence in the Local Court	[252]
(i) Procedural unfairness	[256]
(ii) Erroneous	[260]
Rejection of Mr Keramidas' oral evidence	[266]
D2. Assumptions as to when braking commenced	[267]
D3. Reliance on police sketch	[273]
D4. Unexplained assumption regarding use of photographs	[281]
D5. Failure to consider a range of possible "mechanisms"	[286]
D6. Failure to consider evidence supportive of appellant's case	[298]
(i) Lane of travel	[299]
(ii) Spin out of unidentified vehicle	[304]
Mr Keramidas: conclusion	[306]
CONCLUSION	[312]
ORDERS	[318]
Schedule

JUDGMENT

1. BEAZLEY JA: I agree with McColl JA.
   
2. GILES JA: I agree with McColl JA.
   
3. McCOLL JA: The Nominal Defendant appeals from the judgments of his Honour Judge Levy SC in Saleh v Nominal Defendant [2009] NSWDC 1 (the "primary judgment") and Saleh v Nominal Defendant (No 2) [2009] NSWDC 165 (the "costs judgment"). In the primary judgment his Honour gave what he described as an "interim judgment ... on the substantive issues ... in the sum of $1,033,398" in favour of Khoda Saleh, the respondent, in order that the parties could quantify the final judgment by adding funds management charges. In the costs judgment his Honour gave final judgment for $1,333,398 in the respondent's favour and ordered the appellant to pay his costs on the ordinary basis.
   
4. The appellant complains about the primary judge's findings on liability (including causation), contributory negligence, due search and inquiry and as to two heads of damages. Prominent in its submission is that the judgment reveals that in finding in the respondent's favour, the primary judge acted of his own motion in the absence of cross-examination or submissions by the respondent to suggest why its witnesses' evidence should be rejected, overlooked its submissions and preferred any evidence which could assist the respondent and rejected any evidence which could assist the appellant. It complains that his Honour's approach to finding in the respondent's favour was a denial of procedural fairness and that the primary judge's reasons for many material factual findings were unsound.
   
5. I have concluded that the appellant has made good its complaints that it was denied natural justice (procedural fairness) in a number of respects in the primary judge's evaluation of the evidence and that critical fact findings were flawed. Regrettably the outcome of that conclusion is that there must be a new trial.
   

NATURE OF THE CASE

6. The respondent was involved in a motor vehicle accident at around 6pm on 6 June 2000. The accident took place while the respondent was driving home from work in his yellow Holden Gemini. He was 17 years old and held a provisional licence. He was travelling in one of three southbound lanes on Stacey Street, Bankstown.
   
7. At the trial, which was substantially conducted in May 2008, he sought to establish that the accident occurred because another southbound vehicle changed lanes from the right immediately in front of his vehicle in a manoeuvre that involved contact between the vehicles, that as a result, he braked his vehicle which then skidded across the roadway and collided first with a power pole and then with a nearby fence. He claimed that the identity of the other motor vehicle and its driver was unknown despite due inquiry and search. Hence he sued the Nominal Defendant: see primary judgment (at [2]). By the time crash reconstruction experts were engaged to provide opinions for the purposes of the claim, the respondent's vehicle was not available for inspection. The experts were dependent upon police photographs taken at the accident scene.
   
8. The appellant defended the proceedings on a number of bases. First, it disputed the assertion that an unidentified motor vehicle was involved in the accident. It asserted the respondent was driving in the lane near the median strip and the accident happened because he was driving too fast, and also because he applied his handbrake inappropriately, leading to him losing control of his vehicle (see primary judgment [9]). Secondly, in the event the primary judge accepted the unidentified motor vehicle case, it asserted the respondent had failed to establish that he had conducted "due inquiry and search" to establish the identity of the owner and/or driver. Thirdly, it claimed the accident was caused by the respondent's inappropriate application of the handbrake. Fourthly it claimed the respondent was guilty of contributory negligence, in that he was speeding and in applying the handbrake. It also resisted both heads of damages claimed by the respondent and the extent of those claims.
   
9. The respondent gave evidence but, due to the injuries he had suffered in the accident, was unable to cast any light on the circumstances in which he had been injured. The respondent relied upon Mr Jaouhar, the only passenger in his vehicle, to give the lay evidence of how the accident occurred. He also called Mr Grant Johnston, a crash reconstruction expert, whose two reports were tendered without objection.
   
10. Two other motorists, Miss Cirino and Mr Collin, who were also driving south on Stacey Street at the time of the accident behind, but in close proximity to the respondent's vehicle, gave evidence in the appellant's case. The appellant contended at trial that their evidence established that no other vehicle was involved in the accident and that prior to his vehicle's lateral movement across the road, the respondent was travelling at high speed. The appellant also called Constable Cassidy, the police officer who attended the accident scene. It called Mr William Keramidas, a crash reconstruction expert, as its expert witness. His report was also tendered without objection.
    
11. As a result of the accident the police charged the respondent with negligent driving. Mr Jaouhar and Miss Cirino gave evidence at the Local Court hearing of that charge in April 2000. Some of the primary judge's findings were based on alleged conflicts between the lay witnesses' evidence in the Local Court hearing and at trial and also his assessment of evidence of the appellant's expert, Mr Keramidas, which referred to a summary, but not the complete testimony, of Mr Jaouhar's evidence at the Local Court hearing.
    
12. The primary judge found in the respondent's favour on all disputed areas of liability, contributory negligence and damages.
    

LEGAL PROPOSITIONS

13. The appellant's complaints must be evaluated in the context of the role of the Court on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), which is by way of rehearing. That, as Giles JA explained in a convenient analysis of the authorities, requires the Court to "conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons": Shimokawa v Lewis [2009] NSWCA 266 (at [176]).
    
14. As will become apparent, much of the primary judge's reasoning towards his conclusion in the respondent's favour turned on his rejection of substantially all of the appellant's witnesses' evidence - albeit not on credibility grounds. That factor does not prelude the Court exercising its rehearing function, although it should make "due allowance" for the fact it has not seen or heard the witnesses. If, after making such due allowance, the Court concludes error has been shown and a substantial miscarriage of justice has occurred, the Court may, inter alia, order a new trial: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [25] - [27]) per Gleeson CJ, Gummow and Kirby JJ; Uniform Civil Procedure Rules 51.53.
    
15. Before embarking upon a consideration of the primary judgment and the appellant's complaints, it is appropriate to set out some fundamental propositions concerning the issue of procedural fairness the appellant identifies as at the forefront of the appeal.
    
16. Parties to litigation are entitled to a fair trial at which they can put their case properly before the judge: Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 (at 67), referred to with approval in Stead v State Government Insurance Commission [1986] HCA 54; [1986] HCA 54; (1986) 161 CLR 141 (at 145) per Mason, Wilson, Brennan, Deane and Dawson JJ. Where a party is denied a fair trial, a new trial may be ordered unless to do so would be a futility. Where a "denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference": Stead (at 145).
    
17. "Procedural unfairness" is a convenient description of the appellant's complaint that the primary judge's approach denied it a fair trial. The appellant's complaint may also be expressed as raising a "question of practical fairness and justice" (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 (at [4]) per Giles JA) or a requirement of "fair play and commonsense": Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; [2007] VSCA 181; (2007) 17 VR 492 (at [32]) per Chernov JA (Warren CJ agreeing) citing Jobst v Inglis (1986) 41 SASR 399 per Jacobs J.
    
18. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 per Gleeson CJ (at [37]). "[T]he experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge": Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 (at [83]) per Kirby J, referred to with approval by Redlich JA in Ucar (at [57]).
    
19. The "judicial obligation [to accord procedural fairness] is ... concerned with affording a reasonable opportunity to present or meet a case [an] opportunity [which] is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle": Seltsam Pty Ltd v Gahleb [2005] NSWCA 208; (2005) 3 DDCR 1 (at [4]) per Mason P.
    
20. Campbell JA (with whom Giles and Hodgson JJ agreed) discussed the application of natural justice in court proceedings extensively in Adamson v Ede [2009] NSWCA 379 (at [53] - [63]). His Honour pointed out (at [59]) that "[b]oth in a court and in a tribunal, natural justice requires that a person be given a reasonable opportunity to present his or her case", then referred to the statement by Gaudron J (with whom Dawson J agreed) in Re Architects of Australia Association; Ex parte Municipal Officers Association [1989] HCA 13; (1989) 63 ALJR 298 (at 305) (also known as Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208) where, after referring to this requirement, her Honour said:
    

"...procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue..."

21. In Chaina, Basten JA also observed after referring to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 51.53:
    

"28 The criminal cases addressing the question whether there has been a substantial miscarriage of justice distinguish between:

(a) procedural unfairness which can be shown to have led to an unjust conviction;

(b) unfairness which precludes an assessment of the justness of the outcome, or

(c) a departure from an essential requirement of a trial which itself involves a substantial miscarriage of justice without the need to consider the possible effects on the outcome.

...

29 In civil proceedings it is also helpful to consider the nature of the error asserted by reference to the categories identified above. Stead fell within the second category. In Stead the plaintiff had been denied a 'fair trial' because he had been stopped from presenting his case properly before the judge ... Because the appeal court had not heard the witness, it could not say that the lost opportunity made no difference. To come within Stead, an appellant must first demonstrate a procedural ruling capable of preventing a trial according to law. Not every refusal of an adjournment, limitation on cross-examination or refusal to allow a plaintiff to reopen which is adverse to one party's interests will be so characterised. It is necessary in each case, therefore, to consider the extent to which the alleged unfairness may have had an impact on the outcome and, where that possibility arises, whether the extent of the impact can be assessed on the appeal."

22. If one transposes "unjust verdict" for "unjust conviction" in Basten JA's first category, one readily encapsulates the gist of the appellant's complaint. It can be illustrated by propositions some of which are extracted from administrative law areas, but which have been held to apply to civil proceedings.
    
23. Thus, "[i]t is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of 'a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view' ": Ucar (at [22]) per Chernov JA. His Honour expanded on this proposition (at [27]), saying:
    

"... the general rule [is] that a party should be given the opportunity to respond to matters prejudicial to its interests that are known only to the court and which might be taken into account in the determination of issues that may affect the party's property, rights or legitimate expectations. And, as will be explained later, subject to qualifications, failure to disclose such matters will generally result in the decision being set aside."

24. Where a party is represented the focus will ordinarily be on what should in fairness and justice be made known to the representative. It is not required that the representative be apprised of the judge's views generally, although if the judge is minded to decide the case on a completely different basis from that on which the case is being conducted that should be raised: Chaina (at [4]) per Giles JA referring to Seltsam (at [78]) per Ipp JA, Mason P agreeing.
    
25. I should not leave this discussion of principle without referring to Heydon J's reasons in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; [2009] HCA 49; (2009) 240 CLR 319. Under the heading "The centrality of 'hearings' " (at [141]ff) his Honour discussed (footnotes omitted):
    

" ... the principle that before any judicial decision is made which has substantive consequences there generally should be a 'hearing'. A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow."

26. His Honour elaborated on this proposition, in so doing referring (at [145]) approvingly to Megarry J's decision in John v Rees [1970] Ch 345 (at 402):
    

"[T]hose with any knowledge of human nature who pause to think for a moment [are not] likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

27. Heydon JA then said (footnotes omitted):
    

"146 Illustrations. The courts are extremely solicitous about the interests of persons who have not been given an opportunity to be heard either at all or in respect of particular questions before judicial orders of a substantive kind are made against them. Many illustrations of the duty only to make substantive judicial orders after giving a hearing - that is, not to act ex parte or sua sponte - can be found. A court may not decide a case on a point not raised by one of the parties or by the court for the consideration of the parties. Non-compliance by a court of trial with the duty to give a hearing on a question of law which 'must clearly be answered unfavourably to the aggrieved party' will not lead to a new trial, but where no hearing is given on the question whether a finding of fact turning on witness credibility should be made, it is not easy to conclude that a new trial should be refused on the ground that even if a hearing had taken place, 'it could have made no possible difference to the result'. The court is not entitled to take into account factual material not in evidence without notice to the parties. The court is not entitled to take judicial notice of particular matters of fact after inquiry without notifying the parties of the inquiry and giving them the opportunity to controvert or comment on the source in which the inquiry is made..."

28. One specific illustration pertinent to one of the appellant's damages complaints should be mentioned. It is a denial of procedural fairness to a defendant to disregard the submissions of counsel for a plaintiff and, without notice to the defendant, award substantially more than is sought for a head of damages: Seltsam (at [77] - [79]) applying Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; (2002) 23 NSWCCR 463.
    
29. As I have said, a new trial will be ordered if the appellant demonstrates that the denial of natural justice deprived him or her of the possibility of a successful outcome: Stead (at 147). The latter "principle ... at general law is often sourced to Balenzuela v De Gail [1959] HCA 1; 101 CLR 226, and [is] ... encapsulated in this jurisdiction in r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW), that no new trial should be ordered unless there has been some substantial wrong or miscarriage of justice": Chaina (at [26]) per Basten JA (with whom Giles JA and Young CJ in Eq agreed).
    
30. The penultimate proposition in the previous paragraph was explained by Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (at [4]) by reference to Stead in the following terms (footnotes omitted):
    

"It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent misstatement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the Tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the Tribunal." (emphasis added)

THE PRIMARY JUDGMENT

Issues

31. The primary judge identified the following issues as arising on the liability and damages cases:
    

"10. The liability issues for determination are:

(a) In which lane and at what speed was the Plaintiff's vehicle travelling in the events leading to the collision;

(b) Did physical contact occur between the Plaintiff's vehicle and an unidentified vehicle at the scene;

(c) What were the relevant events of the collision;

(d) Was the driver of that unidentified vehicle negligent;

(e) Was there contributory negligence on the Plaintiff's part and if so, was this a relevant cause of the collision and if so, in what apportionment;

(f) Has the Plaintiff discharged the burden of showing that the owner or driver of the unidentified motor vehicle cannot be established after due search and inquiry?

11. The damages issues for determination are:

(a) The Plaintiff's pre-accident situation and prospects;

(b) The Plaintiff's injuries and the immediate aftermath of such injuries;

(c) The Plaintiff's residual disabilities;

(d) The assessment of the individual claimed heads of damage.

12. The determination of the liability issues requires detailed analysis of complicated expert reports. The determination of the damages issues requires analysis of voluminous hospital and medical reports and credit issues concerning the Plaintiff."

32. I would add that, as will become apparent, the issue of liability required the analysis of lay evidence. The respondent suffered brain damage in the accident and had no recollection of what had happened. The evidence about the unidentified motor vehicle came, as I have said, from the sole other occupant of his vehicle at the time of the accident, Mr Jaouhar, who was the respondent's brother-in-law and friend.
    

Liability

33. At the scene of the accident Stacey Street comprised three southbound lanes on a slight downhill grade which incorporated a sweeping curve to the left with a radius of about 500 metres. The applicable speed limit for the area was 70 kph (at [5]). The roadway was divided in its centre by a median strip (at [36]).
    
34. At the trial the three lanes were described as follows:
    

"Lane 1 was the gutter or kerbside lane while Lane 3 referred to the lane adjacent to the median strip which was also sometimes referred to as the 'median lane'. At the intersection of Stacey Street with Canterbury Road Lane 1 was a left-turn lane. At a point further south from where any relevant events occurred Stacey Street widened to four lanes, the additional lane being a right-turn lane."

35. The right-turn lane was not relevant to the liability issues.
    
36. There appears to have been a controversy at trial about the state of the natural light at the time of the accident. The primary judge concluded from meteorological evidence which showed that sunset had occurred at 16:54 hours on the day of the accident, that at the time of the collision - about 6pm according to his Honour (at [2]) - it was already completely dark. This meant his Honour rejected the evidence of Mr Collin and Miss Cirino which suggested the contrary. Mr Collin thought it was not fully dark but dusk. Miss Cirino thought it was "darkish" but not pitch black. His Honour considered their evidence in this respect "to be imprecise in its terms": at [30]). He later used it as one reason to doubt the reliability of their observations.
    

Police sketch

37. A matter which assumed significance in the primary judge's determination of the liability issue was the sketch reproduced below which Senior Constable Glenn Cassidy, the police officer who attended the scene of the accident, drew in his police notebook:
    

It should be noted that it was common ground that the line which appears in the centre of the sketch was a tick placed on the sketch by Constable Cassidy's supervisor.

38. Constable Cassidy gave the following evidence in chief about the preparation of the sketch:
    

"Q. Now on the drawing that you made of the skid marks, you attempted, did you, to reproduce where they started and where they finished?

A. That's right.

Q. Did you try to do that as accurately as you could?

A. Yes.

Q. And did you attempt to record the path that the skid marks took?

A. Yes.

Q. And did you attempt to do that as accurately as you could?

A. Yes.

Q. And were you, when you were there that night and produced this diagram, comfortable that you'd done as well as you could in recording faithfully those three features, the commencement, the finish and the path of the skid marks?

A. Yes."

39. The following exchange took place in cross-examination:
    

"Q. I don't think from your comment about your good artwork you profess that this [the sketch] is either to scale or at all accurate as to - apart from the measurement of the length - the nature of the skid marks. Is that right?

A. The shape of the skid marks is accurate?

Q. Yes.

A. It's definitely not to scale.

Q. In terms of distances from lane markings to the other, it's fair to say that you'd be guessing as to where the skid marks commenced - whether it was in the middle of the lane or towards one side of the lane or the other, is that right?

A. Yes, I said - I think I've said that before.

Q. Now I suppose the thing about skid marks is to try and indicate to some degree where those skid marks started and where they finished.

A. Yes."

Assessment of witnesses

40. The structure of the primary judgment was such that the primary judge assessed the lay witnesses' evidence at two stages. First, under his heading "Consideration of factual evidence from liability witnesses" and secondly under the heading "Determination of liability issues". His Honour's assessment of those witnesses, in the light of the appellant's complaints, is best understood by seeking, as I have done below, to consolidate those findings.
    

1 Mr Jaouhar

41. Mr Jaouhar gave a statement at the accident scene to Constable Cassidy which was recorded in his notebook as follows:
    

"Q. What happened?

A. We were driving in this lane (indicating Lane 2). The guy in front slammed his brakes on hard. Khodr slammed his brakes hard. They didn't work properly so he slammed the handbrake on hard. We slipped, lost control + hit the pole + that's all I remember..."

42. The proposition that another vehicle had come into contact with the respondent's vehicle prior to it skidding across the road appears to have first emerged in Mr Jaouhar's evidence in the Local Court proceedings. At those proceedings and at trial he said that prior to the respondent losing control of his vehicle the other vehicle gave the respondent's vehicle "a bit of a nudge" on the driver's side.
    
43. Mr Jaouhar agreed at trial that the evidence he gave in the Local Court proceedings "contained more detail than that which he provided to the police at the scene". His explanation for this difference was that he was in shock and in a dazed state at the scene and he had only told the police officer the "the basic stuff" whereas at the time he gave subsequent evidence he said he had "... more time to know what happened, and to sink it all to my brain as to what exactly happened" (at [46]).
    
44. The primary judge described Mr Jaouhar as the only passenger in the respondent's vehicle and apparently "well placed to be able to describe the continuum of events leading to the collision." His Honour set out Mr Jaouhar's description of the accident referring, on two occasions (at [35] and [42]) to Miss Cirino's evidence either to clarify a point said to have been left unclear by Mr Jaouhar's evidence or as corroborative of an aspect of Mr Jaouhar's evidence.
    
45. His Honour noted (at [44]) the challenge to Mr Jaouhar's credit to the effect that he had invented the involvement of an unidentified vehicle in order to help the respondent who was his friend and relative by marriage. He then referred to other issues put to Mr Jaouhar in his cross-examination as to whether, in effect, prior to the accident, the respondent's vehicle was travelling in conjunction with other friends who were "playing road games described ... as 'fish tails' ". His Honour noted that Mr Jaouhar "forthrightly denied those suggestions". It is not plain whether that statement referred both to the credit challenge and the road games proposition. I infer it was the latter because that aspect of the cross-examination was dismissed on the basis that despite its specificity "no contrary evidence was called to describe the occurrence of such alleged road games and fish tail manoeuvres." His Honour did not deal specifically with the credit challenge.
    
46. The primary judge described Mr Jaouhar's statement to Constable Cassidy at the scene "suggesting the presence of another vehicle" as in his Honour's view "contemporaneously corroborative of his evidence concerning the presence of another vehicle at the scene" (at [45]).
    
47. The primary judge dealt briefly with propositions put to Mr Jaouhar as, in substance, to the development of his account of the collision to the point where it involved a car having nudged the respondent's vehicle. He inferred (at [46]) that after the evening of the actual collision Mr Jaouhar had "had time to gather his thoughts and recollections in order to provide a more detailed and accurate account." Referring to a concession by Mr Jaouhar that he should have told police about the other vehicle at the scene, the primary judge found that the comment in his police statement referring to "the guy in front" was an attempt on his part to inform the police of the presence and involvement of another vehicle (at [49]). His Honour then referred to evidence Mr Jaouhar gave in chief to try to explain why he did not tell police at the scene about the other vehicle:
    

"Q. Why was that?

A. At that time of the accident, like I said, when the police approached me, I didn't - I just - I just gave them like a - I don't know why I did - didn't tell them about the car, but this - I told them there was a car involved in the accident."

48. The primary judge accepted (at [50]) that Mr Jaouhar's answer "may appear to be difficult to understand at first reading when viewed in stark print without the benefit of it being enlivened by observing the manner of Mr Jaouhar in giving this evidence because in his evidence Mr Jaouhar did not express himself in a fluent or articulate manner." The primary judge said he had "observed and noted that when he was giving evidence he was not at ease or relaxed" and inferred that could have been the case when he was interviewed at the scene. His Honour did not "discount the possibility that the brief statement of Mr Jaouhar recorded in Senior Constable Cassidy's notebook was a condensed summary of a lengthier and far less articulate account given by him at the scene."
    
49. The primary judge concluded that "Mr Jaouhar left [him] with the impression that he was doing his best to give a sincere and accurate account of his recollection of the events" (at [51]).
    
50. The primary judge concluded (at [168]) for the reasons which I set out below, that he could not rely on either Mr Collin's or Miss Cirino's evidence on the critical issues going to liability. He also rejected (at [168]) the expert evidence called by both parties on the issue of lane of travel and speed or (at [169]) found their evidence did not provide a basis for relevantly contradicting Mr Jaouhar's evidence.
    
51. The primary judge concluded (at [170]) that Mr Jaouhar's account of the events was, in substance, reliable and to be preferred to that of the independent lay witnesses.
    

2 Mr Collin

52. Mr Collin was travelling south in the kerbside lane of the three southbound lanes in Stacey Street in a medium sized four-wheel drive vehicle which was to a degree elevated (at [52]). The primary judge set out his account of the lead-up to the collision as follows (at [53]):
    

"... he stated he saw a car 'flash' between traffic from the far right lane adjacent to the median strip into the middle lane and also from the middle lane to the kerbside lane. He stated there were two 'flashes' between the gaps in the traffic followed by the appearance of dust and debris."

and (at [55]):

"When Mr Collin was asked whether he had seen another vehicle in the area he stated:

'A. I have no recollection of anything that happened around this incident'."

53. The primary judge recorded Mr Collin's cross-examination relevantly as follows (at [59]):
    

"'...A. The flash, flash, the debris coming up and sort of sickening feeling that there had been an accident.

...

Q. You see - I am not being critical of you but you're surmising that the vehicle must have come from the outside lane because you saw a flash-flash. Is that fair to say?

A. No I actually saw a gap between the outside lane - our right-hand side lane and the middle lane. The car moved between that - through that gap and I also saw it move through the gap between the middle lane and the kerbside lane or gutterside lane.

Q. What was the distance between your point of observation and those vehicle movements?

A. That is what I think was about 100 metres.

Q. And what you saw was a vehicle which appeared to move across three lanes, is that right?

A. Yes.

Q. But you couldn't tell the colour of the vehicle could you?

A. No.

Q. All you saw was what you thought was a vehicle going flash, flash into the intervening spaces between the lanes?

A. Well, it definitely was a vehicle.

Q. There could have been two vehicles that crossed lanes, couldn't there? In other words, there could have been a vehicle that swerved from the median lane across a vehicle in the middle lane, that was one flash, and then the vehicle in the middle lane being forced off to the left, that's another flash. That could have happened, couldn't it?

A. I think that possibly could have because I don't recall, you know, specifically seeing a particular colour vehicle or type of vehicle in these flashes, yeah.

Q. All you were aware of is that there was this flash, flash.

A. Yes, and then the - accident on the side of the road.'" (emphasis added)

54. His Honour stated:
    

"60. By his second-last quoted answer, Mr Collin conceded the possibility of the involvement of another vehicle in the events of the collision, consistent with the case the Plaintiff was seeking to make based on the evidence of Mr Jaouhar."

55. Mr Collin also gave evidence that he formed the impression the respondent's car was travelling "abnormally fast" (see [146]). Of this evidence his Honour said:
    

61. When Mr Collin was asked about the speed of the Plaintiff's vehicle he said he could not judge the speed of the vehicle but knew the speed was abnormally fast. In view of this evidence and in view of what must have been the very limited period of time available to Mr Collin for such an observation, I have to consider the evidence as a whole in order to evaluate the reliability of the evidence of Mr Collin to the effect that the Plaintiff's vehicle was travelling abnormally fast. In particular, I have to consider the significance of his evidence that the traffic was moving normally at the time."

56. The primary judge (at [146]) placed little weight on Mr Collin's evidence that the vehicle he saw was travelling "abnormally fast" because:
    
    • Mr Collin had "limited opportunity" to observe the respondent's car and determine its speed;
    • Mr Collin's observations were made from at least 100 metres north of the incident; and
    • Mr Collin could not describe the time or distance over which he observed the travel of the respondent's vehicle.
      
57. The primary judge also regarded Mr Collin's observations concerning the lane of travel of the respondent's vehicle as rather limited (at [147]). Again this assessment was based in part on the distance from which Mr Collin's observation was made. His Honour regarded Mr Collin's observation of two flashes as "an overly simplistic conflation of events and therefore unreliable as an accurate account". There were four reasons for this:
    
    • Mr Collin conceded the possibility there were two cars that changed lanes;
    • Mr Collin did not agree that it was dark at the time of the incident notwithstanding objective evidence that it was in fact dark at the time;
    • Mr Collin did not see the respondent's car skid and spin out of control; and
    • He did not know whether or not he had his headlights on notwithstanding that the incident occurred more than an hour after sunset and in winter (at [149]).
      
58. The primary judge concluded (at [150]), that "these matters and [Mr Collin's] non-observance of the Plaintiff's vehicle spin out of control necessarily impairs the reliability of his observations of the events in question, notwithstanding that I accept that he was doing his honest best to describe the events as he recalled them ... the evidence of Mr Collin does not assist me in determining the probable speed or lane of travel of the Plaintiff's vehicle".
    

3 Miss Cirino

59. The appellant also called Miss Cirino. The primary judge summarised her evidence as follows:
    

"63. In her evidence in chief Miss Cirino stated that she had finished her work at Chester Hill at 5.30 pm and was on her way home when the collision occurred. She nominated the time of the collision as being somewhere between 5.30 pm and 6.00 pm on the day in question. At the scene she was driving south in Stacey Street. She stated that she was in her vehicle travelling south in the kerbside lane at a speed that was just under the speed limit in readiness to make a left turn into a continuation of Stacey Street where it turned into Fairford Road.

64. Miss Cirino described her perception of becoming aware of a vehicle accelerating at a high speed in the lane closest to the median strip. She also stated that she was aware of hearing the revving of accelerating motors. From her use of the plural motors, I infer that apart from her own vehicle which was slowing down in readiness to turn left, there were two other vehicles in the vicinity.

65. In this context she identified what she described as the Plaintiff's small yellow vehicle, moving, as she said she saw it, from the lane adjacent to the median strip and across the other southbound lanes to appear and cross in front of her. She gave varying descriptions of the vehicle crossing at about a metre or so directly in front of her own vehicle in the kerbside lane. She stated that the speed of that vehicle was much faster than that of her own vehicle.

66. Miss Cirino described her observation of the yellow vehicle starting to skid from the third lane which was the one closest to the median strip and to then continue to skid to the left whilst crossing the middle and kerbside lanes and then skid into collision with a kerbside pole and then continue on into a forceful collision with a nearby fence. She stated that she then applied her brakes hard, stopped, called for an ambulance and then approached the Plaintiff's vehicle and rendered assistance."

60. The primary judge concluded for a number of reasons that he could not accept Miss Cirino's evidence as reliable. I will deal with those in detail in due course. However, in summary they were "the objective evidence ... that the skid marks left by the Plaintiff's vehicle commenced inside the middle southbound lane and not in the lane adjacent to the median strip" (at [67], [76]), what his Honour regarded as "differences in the content of her evidence given [in the Local Court proceedings] when that evidence is compared to the evidence that she gave at the hearing of these proceedings" (at [69]), including her different estimates of her speed (at [70] - [71]), her ability reliably to have observed the position of the respondent's vehicle behind her (at [73] - [74]), differences in her recollection of the other traffic in the vicinity (at [75]), her inability to "recall the colour of the vehicle that she saw in the lane closest to the median strip but saw the Plaintiff's yellow vehicle in collision with the pole" (at [78]) and her inability to recall that the angle at which the yellow car cut across in front of her was almost 90 degrees (at [78]).
    
61. Later in his reasons when he returned to the issue of Miss Cirino's reliability, the primary judge stated (at [152]) that the variances in Miss Cirino's estimates of her own speed led him "to the view that Miss Cirino's evidence as to speed estimates was based on guesswork rather than actual recollection."
    
62. His Honour also formed the view that Miss Cirino's evidence as to the respondent's speed was unreliable (at [156]). He noted Miss Cirino's evidence that she observed the respondent's vehicle accelerating behind and to her right. His Honour doubted her opportunity to make meaningful observations in circumstances where she claimed the respondent was travelling so fast, and was behind her (at [73] - [79]). His Honour regarded her evidence as containing a "good deal of confusion" (at [77]) and unreliable as to the respondent's speed (at [156] - [157]).
    
63. The primary judge rejected Miss Cirino's evidence that the respondent was travelling in the median lane. His Honour did so (at [160]) because of inconsistencies in her evidence as to her own speed and headlight illumination between the 2001 criminal trial and the 2008 civil hearing; her "inconsistent" observation of revving motors and screeching tyres from the same vehicle (see also [165]); her failure to describe the prevailing conditions as "dark" when it was in fact dark; and inconsistencies between her description of the state of the respondent's car after the accident and the photographic evidence.
    
64. In rejecting the accuracy of Miss Cirino's recollection, his Honour also placed reliance (at [161]) on the fact Miss Cirino was preparing to turn left at the time of the accident. He regarded it unlikely Miss Cirino would have had sufficient time or a proper vantage point from which to make reliable observations about the dynamics of the events leading to the collision (at [161]).
    
65. His Honour placed particular reliance (at [154] - [155]), however, on Miss Cirino's phrase in describing what she heard before the respondent's car came into view: "I could hear, like, the motors revving". He regarded Miss Cirino's use of the plural "motors" as indicating there were two southbound cars to her right. His Honour also considered Miss Cirino's evidence that she heard both the screeching of tyres and the revving of motors simultaneously as indicating two other vehicles were present (at [165]).
    

4 Expert evidence

66. The primary judge accepted that both expert witnesses, Mr Grant Johnston, retained by the respondent, and Mr Keramidas, held acknowledged expertise in the fields of engineering and crash analysis (at [80]). Both gave oral evidence. Mr Johnston prepared two reports, one of which was a comment on Mr Keramidas' report. All reports were tendered without objection.
    
67. Each expert's report was, as might be expected "to varying degrees, based on assumptions." His Honour thought it significant that "some of those assumptions did not feature in the evidence tendered by the parties at the trial" and concluded that "this influenced the probative value of the reports" (at [81]). He also held that the reports "have been affected by significant forensic difficulty which undermines the reliability of these opinions" (at [83]). Chief among his Honour's criticisms was the fact that both reports referred to background material which was not tendered which, in his Honour's view, raised "methodological questions as to the reliability of the expert evidence concerning the respective crash reconstruction analyses" and was "a factor which undermines the facility for transparent evaluation and therefore the assessment of the reliability of the reports" (see [84] - [87]). His Honour also said (at [87]) he had "ignored the references to the extraneous and unproven matters whether they have been stated to be assumptions or background material, such as for example, the speculative reference in both [Mr Johnston's and Mr Keramidas' reports] to the Plaintiff's speed in the lead up to the collision being in excess of 100 kph." In his view:
    

"...the fact that such unproven matters are embedded in the reports tendered reinforces my view that it is necessary to view these reports with great caution when trying to discern the factual bases upon which the authors have expressed their expert opinions."

68. The primary judge said that notwithstanding these difficulties he was required to engage with and analyse the expert evidence (at [88]).
    
69. Having considered aspects of Mr Johnston's reports he concluded that:
    

"114. The foregoing analysis reveals how inexact the science and process of crash reconstructions can be. This leads me to the view that, Mr Johnston's crash reconstruction analysis, although it represented a bona fide attempt at reconstruction based on very limited data, necessarily remains speculative in this case. I therefore consider it to be of very little probative value other than to provide a basis for confirming or not ruling out the feasibility of Mr Jaouhar's factual account of the events." (emphasis added)

70. His Honour then turned to Mr Keramidas' report, observing at the outset of this exercise (at [115]) that:
    

"...Mr Keramidas stated the following three conclusions concerning Mr Jaouhar's evidence:

'1. It is virtually impossible for the scenario outlined by Mr Jaouhar to have taken place, or to have caused the loss of control of the Plaintiff's Holden during this incident.

2. The estimated speed of the Holden at the start of the skidding was 62 to 67 km/h [assuming the braking was only available through the handbrake], or 78 to 83 km/h [assuming the foot brake was also activated and operational at that time]. If one were to accept that there was additional braking prior to the commencement of the skidding, then the approach speed of the vehicle must necessarily have been higher than the above estimates, and potentially much higher.

3. Having reviewed the report of Mr Johnston, there is nothing in that report which caused the author to alter his opinions regarding the incident circumstances.' "

71. His Honour continued:
    

"116. In my view there are a number of difficulties with the first of Mr Keramidas' speculative conclusions in that it is not apparent from the face of the report as to which of the two scenarios outlined by Mr Jaouhar was being considered by Mr Keramidas to be a virtual impossibility. Mr Keramidas had two scenarios available to him for his analysis. These were first, the short statement of Mr Jaouhar that was recorded in the notebook of Senior Constable Cassidy which is referred on page 12 of Exhibit '7' [Mr Keramidas' report] and secondly, the 16 point summary of the untendered evidence given by Mr Jaouhar in the Local Court proceedings as summarised by Mr Keramidas including the incorporation of some selected and incomplete quotes from the evidence given by Mr Jaouhar in the April 2001 Local Court proceedings, as was set out on pages 12 and 13 of exhibit '7'. In this regard:

(a) If the relevant scenario considered by Mr Keramidas is the one set out in short statement Mr Jaouhar gave to Senior Constable Cassidy then I would reject Mr Keramidas' first conclusion because I prefer the collision dynamics analysis as was explained by Mr Johnston wherein he agreed it was possible that rear wheel lock occurred due to handbrake application followed by sideways skidding into the pole. I would prefer this rational explanation rather than a blanket negation of Mr Johnston's description as being virtually impossible because Mr Johnston's description has a grounding in the facts described by Mr Jaouhar. I would also reject Mr Keramidas' first conclusion because it does not accord with my own view of the inherent plausibility of Mr Jaouhar's quoted statement as explained by Mr Johnston and which is inconsistent with Mr Keramidas' view that such a scenario was 'virtually impossible' to have taken place.

(b) If the relevant scenario considered by Mr Keramidas in support of his first conclusion was his 16 point summary of Mr Jaouhar's evidence given in the Local Court proceedings I would also reject that conclusion because the basis for it is not found in the evidence in these proceedings and it therefore remains opaque to analysis. This is so because the summary prepared by Mr Keramidas cannot be evaluated for accuracy, emphasis or appropriateness. This position arises because the Defendant elected not to tender the primary source for that summary, namely, the evidence given by Mr Jaouhar in the Local Court proceedings. In the absence of an agreement between the parties the summary cannot therefore be evaluated against the actual evidence given. I was not informed of any agreement of the parties to the effect that Mr Keramidas' summary of the evidence given in the Local Court proceedings by Mr Jaouhar was accurate. On the contrary, the summarised concession that Mr Jaouhar did not see the Plaintiff pull the handbrake - item 14 of Mr Keramidas' summary - is inconsistent with the evidence given by Mr Jaouhar to the effect that the Plaintiff used the handbrake. In these circumstances, absent the tender of the primary source, I am not prepared to accept a summary that is opaque to analysis: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] NSWCA 305; (2001) 52 NSWLR 705.

117. I am therefore left in the unsatisfactory position of having to speculate on the basis for the first conclusion in the report of Mr Keramidas. Further, the detail of Mr Keramidas' summary items 8, 9, 10 and 13 did not accord with the evidence which Mr Jaouhar gave in these proceedings. The Defendant did not seek to explore or reconcile the detail of these differences by cross-examining Mr Jaouhar on the areas of variance. In my view this state of the evidence results in an insurmountable forensic problem which precludes me from placing reliance upon or accepting the first conclusion in the report of Mr Keramidas.

118. In my view Mr Keramidas' second conclusion, which sums up his analysis of the braking dynamics and estimates of the speed of the Plaintiff's vehicle, is also of limited probative value. In my view this is so because the underpinning analysis for that conclusion is necessarily reliant upon his subjective and unexplained views as to the significance of selected aspects of the evidence given by Mr Jaouhar in the Local Court proceedings when the entirety of that evidence is unavailable for scrutiny in these proceedings. Although Mr Keramidas legitimately had that material before him when he prepared his opinion, the fact remains that this material was not tendered in these proceedings. The result is that Mr Keramidas' second conclusion remains opaque to analysis and I therefore reject it: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

119. Mr Keramidas' third conclusion simply expresses disagreement with Mr Johnston's opinion, and as such requires no further analysis.

120. Even though I formed the view that Mr Keramidas' second conclusion is opaque to analysis, before rejecting that conclusion I considered the appropriateness of reviewing Mr Keramidas' summary of Mr Jaouhar's evidence given in the Local Court against the fabric of the evidence given by Mr Jaouhar in these proceedings in order to determine whether the Defendant had established 'a fair climate for the views of expert witnesses' as explained in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 per Samuels JA at 509[G]. I have concluded that the task of comparing that summary with the evidence of Mr Jaouhar would be a fruitless exercise because the basis of the summary remains opaque to analysis. In my view this means that Mr Keramidas' opinion is in the same category.

121. As a consequence, the foregoing analysis leads me to reject the conclusions expressed in the report of Mr Keramidas: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705." (emphasis added)

72. His Honour considered (at [122]) that notwithstanding the view he had taken of Mr Keramidas' report, he had to consider and evaluate his oral evidence. The primary judge then undertook a critical analysis of Mr Keramidas' oral evidence. It will be necessary to return to his Honour's criticism in some detail. However at this stage a summary will suffice.
    
73. His Honour was critical of Mr Keramidas' oral evidence because:
    

(a) It was based on the theories he had outlined in his report, which, in turn, were based upon the assumptions he had made for the purpose of preparing his report and their opacity to analysis was not clarified by Mr Keramidas in his oral evidence (at [123], [130]);

(b) "For the purposes of estimating the speed of the Plaintiff's vehicle, Mr Keramidas assumed, in my view unwarrantedly, that the Plaintiff's vehicle only commenced to brake at the commencement of the skid marks ... as distinct from when the brakes were applied. The basis for making that assumption was not fully reflected in the evidence, and [made] no allowance for any retarding effects on speed due to an initial application of brakes before wheel locking and skidding commenced" (at [124]);

(c) There was an "apparent inconsistency in his opinions [as to where the respondent commenced to brake in light of the skid marks which] was not explained or reconciled" (at [125]);

(d) Mr Keramidas appeared to have invested the police sketch with a degree of accuracy beyond that which was intended to be represented in that diagram (at [126], [128] - [129]);

(e) "[L]ike Mr Johnston, he said the process by which he estimated the speed of the Plaintiff's vehicle prior to the collision was in turn based was [sic, on] his evaluation of the photographs showing the damage to the Plaintiff's vehicle. That is an inherently imprecise and necessarily limited basis for making estimates of speeds of the kind Mr Keramidas sought to make. This is so because I consider that the viewing of the photographs does not permit accurate measurements of the extent of the intrusion damage to the relevant areas. A commonsense analysis indicates that accurate measurements would be required for such a process to have any probative value" (at [127]);

(f) "The evidence of Mr Keramidas also relies upon an unexplained assumption arising from an interpretation of the photographic evidence of vehicular damage concerning the likely effect of contact between the Plaintiff's vehicle and the unidentified vehicle referred to by Mr Jaouhar. The unexplained assumption embedded within the question asked was 'what could be gleaned from the photographs of the Gemini'" (at [131]);

(g) Unlike Mr Johnston, he had not factored into his discussion a consideration of an array or range of possible mechanisms, including the possibility of a sudden and hard swerving or overcorrection manoeuvre of the Plaintiff's vehicle to the left intended to try and avoid a more serious collision with the unidentified vehicle and, accordingly, had not analysed the full range of the factors relevant to the analysis of the potential forces involved in the events in question (at [132] - [133]); and

(h) His evidence was "conjectural" because "he appears to have made no allowance for the retarding effect on the speed of the vehicle when the footbrake was applied [and] seems to have excluded this factor because of the lack of evidence of such braking. In my view such an analysis ignores the effect of Mr Jaouhar's evidence as for the application of the footbrake. It also ignores the evidence concerning the skid marks commencing in the middle lane" (at [135]).

74. The primary judge concluded:
    

"138. Having analysed both the report of Mr Keramidas and his oral evidence I conclude that his analysis is in large part conjectural and is necessarily reliant upon his summary of material that is not in evidence in the proceedings. In my view a significant part of it remains opaque to analysis and it therefore lacks probative value. Further, in my view Mr Keramidas has not sufficiently exposed his reasoning process to enable a proper evaluation of the opinions he has expressed concerning his analysis of the events of the collision. I have therefore come to the view that I cannot safely rely upon the opinions that Mr Keramidas has expressed both in his report and in his evidence, particularly his estimations of the speed and lane of travel of the Plaintiff's vehicle in the lead-up to the collision in this case.

Conclusions concerning the utility of the expert crash analysis evidence

139. Having had the advantage of hearing the factual evidence of the witnesses Mr Jaouhar, Mr Collin and Miss Cirino I believe it is possible to achieve a resolution of the conflicting factual evidence which was based on the perceptions and observations of these factual witnesses without the need to invoke and rely upon the speculative conclusions of the crash analysis experts.

140. I am reinforced in this view by the respective acknowledgments made by both Mr Keramidas and Mr Johnston to the effect that the discipline of crash reconstruction is an imperfect process with inherent margins of error. In my view the analysis of the expert opinion evidence in this case well demonstrates this to be so. When these concessions are viewed against the backdrop of the facts of this case, I find that in this case the expert crash analysis and reconstruction opinions are of extremely limited probative value and are therefore of doubtful guidance in resolving the liability issues to be decided."

75. The primary judge then considered each of the matters he had identified as liability issues. It will be necessary to undertake a detailed examination of his approach to these issues. It is sufficient at this stage to set out his Honour's conclusions, using his Honour's headings and trial nomenclature:
    

(a) Lane of travel and speed of the plaintiff's vehicle

76. His Honour found Mr Jaouhar's account of the events describing the respondent's speed and lane of travel to be reasonable and not internally inconsistent, preferring his evidence to that of Mr Collin and Miss Cirino (at [170]). He held:
    

"172. I find that in the lead up to the incident the Plaintiff's vehicle was being driven by him in the lane adjacent to the median strip until a point on Stacey Street just after a set of traffic lights situated about 300 metres to the north of the collision site when the Plaintiff changed his lane of travel to continue driving south in the middle lane of the three southbound lanes in Stacey Street. I find that this lane change occurred well before the scene of the collision and about 15 seconds prior to the collision.

173. I find that thereafter, the Plaintiff's vehicle was travelling at a speed of about but not in excess of 70 kph whilst travelling in the middle of three southbound lanes in Stacey Street. I find that such speed was not excessive for the prevailing traffic and road conditions in the circumstances. I find that during the course of such travel the Plaintiff's vehicle was travelling no faster than 70 kph and that such a speed was appropriate for the prevailing traffic and road conditions. I find that the Plaintiff continued to travel south in the middle lane at about 70 kph commensurate with the prevailing traffic conditions until the vehicle braked due to the occurrence of other events."

(b) Whether physical contact occurred between the plaintiff's vehicle and an unidentified vehicle

77. The primary judge accepted Mr Jaouhar's evidence that there was contact between the driver's side of the respondent's vehicle and an unidentified vehicle in the manner described by Mr Jaouhar (at [180]). He found:
    

"183. Following my review of the evidence I conclude that immediately before the collision the Plaintiff was driving in the middle lane of three southbound lanes in Stacey Street at a speed of 70 kph. I find that at that time there was some minor contact between the driver's side of the Plaintiff's vehicle and another vehicle which has not been identified and which had travelled from the southbound lane adjacent to the median strip and across the path of the Plaintiff's vehicle. I find that occurred whilst the Plaintiff's vehicle was in the middle of three southbound lanes in Stacey Street. The evidence does not permit me to determine with precision the force involved or the extent of such contact."

(c) Relevant events leading up to the collision with the power pole

78. His Honour found:
    

"185. The evidence of Mr Jaouhar was that the Plaintiff applied his brakes after contact between his own vehicle and an unidentified vehicle. The evidence of Miss Cirino was that she heard the screeching of tyres and skidding. The evidence of Senior Constable Cassidy was that he observed the presence of 23m of skid marks commencing in the middle lane and heading towards the pole with which the Plaintiff's vehicle ultimately collided. In my view, all of this evidence tends to confirm Mr Jaouhar's account of the events leading to the collision of the Plaintiff's vehicle with the power pole.

186. I therefore accept Mr Jaouhar's evidence describing these events. I find that when the unidentified vehicle appeared on the Plaintiff's right and then in front of the path of travel of the Plaintiff's vehicle suddenly and without prior indication or warning, in this sequence there was a minor impact with the driver's side of the Plaintiff's vehicle. I find that in his response, in rapid combination, the Plaintiff first applied the footbrake and then the handbrake. I find that in this process, on the balance of probabilities, the Plaintiff also swerved hard to the left to try and avoid a collision between his own vehicle and the unidentified vehicle which had by this time appeared in front of him after physical contact had occurred between these two vehicles in the manner described by Mr Jaouhar.

187. I find that in these events the rear wheels on the Plaintiff's vehicle locked which caused the Plaintiff's vehicle to spin anticlockwise in a trajectory to the left according to the mechanism that was explained by Mr Johnston. I find that in these events the vehicle skidded, as is evident from the skid marks that were observed on the roadway. I find that this skidding continued until the Plaintiff's vehicle collided with the power pole adjacent to the kerbside lane on the south-eastern side of Stacey Street and then deflected into a further collision with a fence."

(d) Was the driver of the unidentified vehicle negligent?

79. His Honour found:
    

"191. The negligence of the driver of the unidentified vehicle is plainly manifest in these circumstances. The vehicle was being driven in excess of the applicable speed limit of 70 kph which in itself amounts to negligence. The vehicle changed lanes suddenly and without indication or warning and in the process physical contact between the two vehicles occurred. In my view this contact also constitutes negligence. This situation created the risk that the Plaintiff's vehicle would collide with the rear of that unidentified vehicle if evasive action was not taken by the Plaintiff. These circumstances arose due to negligence on the part of the driver of the unidentified vehicle as this action required a sudden emergency response from the Plaintiff that created risks to road users, including to the Plaintiff himself.

192. In these circumstances and for the foregoing reasons I find that the driver of the unidentified motor vehicle was negligent and that such negligence was the cause of the Plaintiff's injuries."

(e) Was there contributory negligence on the plaintiff's part?

80. The primary judge rejected the appellant's submission that the respondent had been guilty of contributory negligence because of "the speed at which [he] was driving", his "alleged inappropriate application of the handbrake" and "the alleged factor of driver inexperience" (at [193]). He said:
    

"195. I have found that the Plaintiff was travelling at an appropriate speed for the prevailing road and traffic conditions and that he was driving within the applicable speed limit and within the marked middle southbound lane. The only factor that caused the Plaintiff's vehicle to change its course and to brake is what I have found to have been the sudden appearance of the unidentified motor vehicle as it appeared across the Plaintiff's path. In the process this caused some minor contact to occur between these two vehicles.

196. In my view the described circumstances created a situation of danger that required an immediate reaction on the part of the Plaintiff. This resulted in the Plaintiff in combination applying the foot brake, the handbrake and swerving his vehicle to the left. In these circumstances I have found that the driver of the unidentified motor vehicle was negligent and that such negligence was the cause of the collision between the Plaintiff's vehicle and the power pole.

197. In my view the Plaintiff's instinctive reaction to these circumstances was both reasonable and appropriate. He applied the footbrake which, on Mr Jaouhar's observation, did not appear to slow the vehicle, most probably because an insufficient period of time had elapsed for the Plaintiff's vehicle to appreciably slow down in juxtaposition with the lane changing manoeuvre that had occurred to his right and ahead of him. In my view what probably occurred next was that the Plaintiff then applied the handbrake hard as an emergency measure to slow his vehicle down as the vehicle which was by then in front had braked hard, as Mr Jaouhar described in his statement to the police. In the course of these events I find that the Plaintiff most probably also swerved his vehicle hard to the left either before, during or as a result of contact between the two vehicles and whilst this other vehicle was still in front of him. In my view it was this combination of events that most probably caused the Plaintiff's vehicle to spin and skid out of control.

198. I find that whilst this agony of the moment response by the Plaintiff was extreme, it was nevertheless undertaken reasonably in order to try and avoid a collision with the vehicle ahead in the unexpected circumstances that confronted the Plaintiff and which had been created by the driver of the unidentified vehicle who had overtaken, changed lanes and then applied the brakes hard which required the Plaintiff to react quickly. In my view this did not amount to contributory negligence on the Plaintiff's part as alleged by the Defendant.

199. There is no evidence that alleged driver inexperience on the Plaintiff's part was a causative factor in the events which led to the collision. The Plaintiff was a licensed driver. He was driving within the applicable speed limit. Whilst the application of the handbrake in the circumstances was not a commonplace manoeuvre it was, in my view, a desperate and reactive collision avoiding measure that was employed by the Plaintiff as a last resort to try and avoid a dangerous situation that had emerged and which was not of his own making. I do not consider that the Plaintiff's split-second decision to employ such an emergency evasive manoeuvre in an effort to avoid a collision could, in the circumstances be fairly characterised as amounting to contributory negligence on his part where the emergency was not caused by him. I therefore reject the Defendant's contributory negligence arguments."

Due inquiry and search

81. The primary judge rejected the appellant's contention that no due inquiry or search for the owner or driver of the unidentified motor vehicle had been undertaken in accordance with s 34 of the Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act". He assessed the issue in the light of the appellant's submission that the respondent had adduced no evidence of any inquiry or search. He noted it was necessary "to evaluate the scope for any inquiry and search to have produced results that were likely to have identified the vehicle in question" (at [202]).
    
82. The primary judge found (at [203], [212]) that no-one at the accident scene was able to make, or provide information in response to, inquiries regarding the identity of the unknown driver involved in the accident. In particular, his Honour found (at [203]) that Mr Jaouhar was dazed and in shock at the accident scene and so was unable to usefully make inquiries on the respondent's behalf at that time.
    
83. His Honour found that Mr Jaouhar had made it known to the police, at the scene, that another vehicle had been involved in the accident (at [203]) referring to the police notebook entry.
    
84. The police arrived promptly and investigated the circumstances of the accident. However, his Honour found (at [205]) Senior Constable Cassidy did not indicate he had identified any eyewitnesses (other than Mr Collin or Miss Cirino) for the purpose of making statements. His Honour observed (at [217]):
    

"It was their duty to try and ascertain the relevant events. The police investigation did not reveal the identity of the other vehicle notwithstanding that Mr Jaouhar's statement signalled that another vehicle was involved."

85. The respondent had apparently retained a solicitor relatively early in the case, but had fallen out with that person at some stage. A tax invoice setting out the solicitor's attendances was tendered. It showed consultations with Mr Jaouhar, perusing the police report and consulting counsel. The primary judge concluded (at [208]) there was nothing "within that limited narrative which would tend to suggest that it was possible to identify the vehicle in question."
    
86. In relation to an advertisement placed in the Bankstown local newspaper on 22 December 2004 by the respondent's next solicitor (as to which there was no evidence of any response), his Honour found (at [210]) that "it would seem unlikely that after over 4 years following the incident anyone would come forward ... and be able to provide material that would assist to identify the vehicle in question."
    
87. His Honour (at [213]) rejected the appellant's submission that residents living in the vicinity of the accident could have provided information, inferring it was doubtful such people would have had "anything useful to contribute" bearing in mind the accident occurred "[o]n a dark night in winter at an hour when nearby residents were probably returning from work or [making] an evening meal".
    
88. His Honour concluded:
    

"217. I am satisfied that in the circumstances of this case due inquiry and search would not have established the identity of the vehicle that was involved in the incident. I have come to this view because, realistically, the police arrived at the scene promptly to investigate the circumstances whilst other witnesses were still at the scene. It was their duty to try and ascertain the relevant events. The police investigation did not reveal the identity of the other vehicle notwithstanding that Mr Jaouhar's statement signalled that another vehicle was involved. This may have been due to limited police resources, pre-occupation with ensuring the Plaintiff received help and clearing the road in peak hour traffic and a limited opportunity to further interview and a limited Mr Jaouhar who was injured and dazed at the time.

218. Even if Mr Jaouhar had been able to provide a more coherent and detailed statement at the time there is no reason to believe that inquiries would have revealed the identity of the unknown vehicle. I am satisfied that once the police and the witnesses Mr Jaouhar, Mr Collin and Miss Cirino had left the scene the trail to be followed to attempt to find the other vehicle was well and truly cold. I am satisfied that by the time this claim on behalf of the Plaintiff was first contemplated, any attempt at due inquiry and search was destined to be futile. In these circumstances I am satisfied that the Plaintiff has fulfilled the requirements of s 34(1) of the Motor Accidents Compensation Act 1999 concerning due inquiry and search."

Damages

89. It is necessary to deal only briefly with one issue of damages having regard to the primary challenge to the liability finding.
    
90. The primary judge recorded (at [578]) that the respondent claimed the value of the assistance of a person:
    

"'to organise his life on a daily basis providing lists and checking up on tasks that the Plaintiff was required to carry out' for an estimated 1 hour per day. The Plaintiff claims the commercial cost of such services at $35 per hour for the remainder of his life."

91. The primary judge regarded this hourly rate as reasonable (at [578]).
    
92. He awarded the respondent $20,846 for past domestic care services and $247,278 for future domestic care services (at [577] and [583] respectively).
    
93. It is convenient to record the essence of the parties' submissions about this head of damages.
    
94. The appellant complains the award as to past domestic care services ignored the respondent's own evidence as to his need for assistance. As to future domestic care, the appellant complains the primary judge allowed a larger sum than was warranted by his findings to the effect that the respondent had no need for care after February 2001, and further that his Honour awarded a higher (commercial) hourly rate than the gratuitous rate sought by the respondent.
    
95. The respondent accepts while his claim for attendant care was based in trial documents on commercial rates, his counsel acknowledged in oral submissions at trial that there was a likelihood of attendant services being provided on a gratuitous basis - although he asserts the court was also asked to value such care commercially.
    

ISSUES ON APPEAL

96. The appellant relies on the following grounds of appeal:
    

" (A) Liability

1. The Trial Judge erred in finding that the motor accident occurred due to the negligence of the driver of a second motor car:

(a) By making findings inconsistent with the evidence as to the likelihood of the presence of a second motor car.

(b) By making findings inconsistent with the evidence as to the likelihood that the respondent's motor car was solely involved in the accident.

(c) By rejecting the expert evidence.

(d) By making findings inconsistent with the evidence of the eye witnesses to the accident.

(e) By failing to give adequate reasons.

(f) By denying the appellant procedural fairness.

2. The Trial Judge erred in failing to find that the motor accident was solely the fault of the respondent:

(a) See grounds 1(a) - (f) above.

3. The Trial Judge erred in finding that the respondent had discharged his duty of due inquiry and search under section 34(1) of the Motor Accidents Compensation Act 1999.

(B) Contributory negligence

4. The Trial Judge erred in failing to find that the respondent was guilty of contributory negligence:

(a) By failing to find that the respondent's act of applying the handbrake was contributory negligence.

(b) By failing to find that the speed at which the respondent drove his motor car was excessive and contributed to the accident.

(C) Damages

5. The Trial Judge erred in the assessment of economic loss:

(a) By making findings inconsistent with the evidence of the respondent's pre-accident employment.

(b) By making findings inconsistent with the evidence as to the likely earning capacity of the respondent before and after his accident.

(c) By erring in the estimation and application of contingencies.

(d) By making consequential errors in the calculation of the entitlement to damages for loss of superannuation.

6. The Trial Judge erred in the assessment of damages for attendant services:

(a) By making an allowance in the absence of the need for care.

(b) By making allowance for services not properly the subject of the claim.

(c) By assessing damages in accordance with a 'commercial rate' rather than the rate claimed by the respondent.

(d) By failing to discount for contingencies."

97. In the course of the appeal it appeared that the appellant abandoned ground 1(e). Certainly no submissions were expressly addressed to it.
    
98. In the event the appeal is successful the appellant seeks either a verdict in its favour or that the matter be remitted to the District Court for a new trial on issues of liability and damages.
    

SUBMISSIONS

99. As I have said, the appellant's submissions include that it was denied procedural fairness in the manner in which the primary judge reasoned to his conclusion in favour of the respondent. That complaint was addressed in detail in its written and oral submissions. It will be necessary to examine it with the same degree of detail as those submissions exposed. As will become apparent the length of that analysis is such that it is better to set out the respondent's submissions before addressing the detail of the appellant's complaints.
    
100. The respondent's written submissions did not even faintly engage with the central proposition on which the appeal was founded. They did not address the issue of procedural fairness at all. Rather, insofar as the issue of liability was concerned, the respondent's written submissions appeared to advance the proposition that the primary judge's ultimate finding was correct. While that may be an appropriate submission in the ultimate exercise of the Court's discretion as to whether to grant a new trial, it was of little utility in resolving the procedural fairness complaint.
     
101. Further, the respondent's written submissions referred to passages in the evidence without reference to whether the primary judge had accepted or rejected that evidence. This approach presented particular difficulties in that section of the respondent's written submissions dealing with the expert evidence where, having noted that the primary judge rejected the experts' written evidence, the submissions repeated some aspects of his Honour's findings but then referred to the facts in a manner which appeared to invite this Court to evaluate, in particular, the appellant's expert evidence without regard to the primary judge's rejection of it. For example the written submissions baldly asserted that the only conclusions available from the cross-examination of Mr Keramidas was that his report would carry little or no weight. They contended this was the conclusion the primary judge reached - without apparent appreciation that it was not the cross-examination which led to his Honour rejecting that report.
     
102. The respondent's oral submissions did not advance the matter much further. Mr Miller of Queens Counsel, who appeared with Mr J Jobson on appeal, but not at trial, quite frankly informed the Court that his junior (who prepared the written submissions) was not aware the appeal was going to be put on the basis of procedural fairness and that he and his junior had only appreciated that approach as the oral argument developed.
     
103. Ultimately, Mr Miller did not address the Court on the procedural fairness issue - leaving that task to Mr Jobson. Prior to leaving him to that task, Mr Miller submitted that while the primary judge's reasons were "somewhat lengthy, [they] are all supportable". The position was not substantially improved by Mr Jobson's oral submissions. No doubt because, as Mr Miller said, Mr Jobson did not appear to have appreciated the appellant's procedural fairness complaint, his oral submissions tended to repeat the thrust of the written submissions and address the ultimate issue as to whether the primary judge's conclusion was open to him, rather than the process issue of procedural fairness of which the appellant complained.
     
104. In light of the divergent approaches of the parties I have thought it best first to summarise the respondent's submissions on the critical liability issue, then to address the detail of the appellant's procedural fairness complaint and its complaint that the fact-finding was otherwise unsound. I have considered any passages in the evidence to which the respondent drew attention as supportive of the primary judge's approach - even if not referred to by his Honour. Before turning to the detail of the complaints, I will also briefly outline the parties' submissions on due inquiry and search, and contributory negligence. I have set out the damages submissions above (at [93] - [95]).
     

Submissions of the respondent

105. The respondent's written submissions concerning Miss Cirino asserted, without reference to any specific parts in the seven appeal books of transcript and exhibits, that Miss Cirino's first recollection of the vehicle had changed from being when "it was crossing my path" (2001), to "would have heard the engine" (Local Court) and "motors revving" (trial). Otherwise he asserted that looked at as a whole, Miss Cirino's evidence contained "crucial inconsistencies that put doubt on the veracity of the whole of her evidence". He complained that the appellant's submissions fell into "the same error of selective evidence to establish a point that they complained was the error of his Honour".
     
106. The respondent also submitted that Miss Cirino both in her evidence in the Local Court and at trial acted more as an advocate of her version of events than as an independent witness. He submitted that her evidence at trial could only be described as "defensive" and contended she would not concede any point which did not fit in with her "changed evidence". He relied in this respect on evidence Miss Cirino gave at the trial about having seen the handbrake in the respondent's car being "up" at the crash scene. I set out that evidence when dealing with the handbrake issue below.
     
107. The respondent criticised Miss Cirino's evidence at trial of becoming aware of "motors revving" pointing out that she had not given that evidence at the Local Court. He described the manner in which Miss Cirino gave evidence in the Local Court and at trial as "adversarial". He relied in this respect on cross-examination of Miss Cirino concerning the state of light at the time of the accident in which she adhered to her statement that it was "darkish" at the time of the accident, even when told that the sun had set before 5 pm on the night and, further, said she could not recall whether she had her lights on.
     
108. The respondent also drew attention to Miss Cirino's evidence in the Local Court proceedings to the effect that it was the sound of the yellow car's "motor or engine, the sound of his car" which first made her turn around and look - a proposition the cross-examiner suggested was not what she had told the police in February 2001 - apparently in a statement which was not tendered at trial. Her response to the cross-examiner's proposition that she was not sure was:
     

"Well definitely was an engine and probably was a screech of tyres when he started to turn I guess."

109. Another passage to which the respondent drew attention related to Miss Cirino not being able to say what kind of car she saw behind her in her lane on the evening of the accident.
     
110. Insofar as Mr Collin was concerned, the respondent submitted that the primary judge was entitled to conclude Mr Collin's evidence about two flashes demonstrated the presence of two vehicles. He argued that "without two vehicles the evidence of Collin makes no sense and it is consistent with the evidence of Mr Jaouhar". His written submissions also submitted that Mr Collin said there was "a vehicle in the middle lane" a proposition it said Miss Cirino had denied. No references were given in the written submissions to the passages of transcript said to be referred to - however even assuming it to be correct, it is not clear how that advances the respondent's position. Mr Collin and Miss Cirino were in quite different positions on the road prior to the accident, with Miss Cirino being at the front. It is entirely possible that their views of the traffic were different. Nor was any submission made as to what the Court should make of this evidence in the light of the appellant's complaint about procedural fairness.
     
111. As to Mr Jaouhar's evidence, the respondent submitted that unlike other witnesses, he was willing to concede where he could not remember all of the events clearly, that his evidence was consistent with Mr Collin's to the effect that prior to the motor vehicle accident he had not observed anything about the traffic conditions to cause concern, that Mr Collin gave no evidence of "motors revving" as did Miss Cirino and that his evidence was consistent with Mr Collin's insofar as the latter's evidence of "flash, flash" suggested the involvement of two vehicles.
     
112. The respondent disputed the appellant's submission that if the primary judge had drawn the "weaknesses in the expert's report" to its attention, it could have sought leave to adduce further evidence submitting this was contrary to UCPR 31.28. While the respondent's submissions concerning the primary judge's treatment of the expert evidence were not clear and, in particular, did not address in any detail the appellant's written submissions, it appears that the respondent sought to argue that the primary judge's conclusions were correct and that some of Mr Keramidas' assumptions were not - the written submissions did not attempt to explain how the matters generally indicated either supported the primary judge's conclusion or disputed the proposition that the appellant had been denied procedural fairness
     

Due inquiry and search

113. The appellant complains that the primary judge overlooked the evidence of what the respondent could have done to seek to identify the other vehicle. Secondly, it submits the primary judge misdirected himself as to the statute and case law. Thirdly, it argues the primary judge failed to consider whether further inquiry would have assisted in determining whether there was another vehicle.
     
114. The respondent submitted that the primary judge's conclusion was consistent with authorities establishing that it is not incumbent upon a plaintiff pursuing the Nominal Defendant to take steps to inquire and search if it is apparent in the circumstances of the case that those steps would be futile: Harrison v The Nominal Defendant (1975) 50 ALJR 330; Nominal Defendant v Swift [2007] NSWCA 56.
     

Contributory negligence

115. The appellant complains that the primary judge applied a purely subjective test in determining whether or not the respondent's application of the handbrake was inappropriate. Secondly, it submits that the objective evidence was to the contrary of the primary judge's conclusion that the respondent was not speeding.
     
116. The respondent's written submissions only address the issue of excessive speed. They contended that the primary judge was entitled to conclude that he was travelling within the speed limit drawing attention to Mr Jaouhar's evidence.
     

The course of the trial

117. Before referring to the detail of the appellant's complaints it is appropriate to refer at the outset, albeit briefly, to the course of the trial.
     
118. Mr Cranitch of Senior Counsel appeared for the respondent with Mr Jobson. Mr Watson of Senior Counsel appeared for the appellant.
     
119. The nature of the evidence each party called is by now well apparent.
     
120. At the close of evidence, the parties prepared written submissions and also addressed orally. The respondent's written submissions argued that Mr Jaouhar's evidence of the circumstances of the accident was consistent with the skid mark drawn in the police sketch. They contended that that skid mark was inconsistent with Miss Cirino's evidence. The respondent also submitted that Miss Cirino could not be accepted as an accurate historian. The written submissions contended that her evidence in chief at trial contradicted evidence she gave in the Local Court proceedings. In addition they submitted that contradictions in her evidence could be identified in relation to issues relating to the handbrake, speed, the question whether it was night or day, the engine sound, screeching sounds she said she had heard, whether there was any traffic in the middle of the lane and the commencement of the skidding.
     
121. The respondent's written submissions addressing Mr Collin's evidence on the issue of contributory negligence contended that that evidence could be understood as a concession on his part that one of the flashes he saw was the unidentified vehicle crossing in front of the respondent's vehicle, then the respondent's vehicle crossing from lane 2 towards the pole with which it ultimately collided.
     
122. The respondent's written submissions at trial dealt in some detail with the expert evidence. They argued that Mr Keramidas' evidence ultimately favoured the respondent's case.
     
123. The appellant's written submissions argued there should be a verdict in its favour. It submitted that Mr Jaouhar's evidence was contradicted by that of Miss Cirino and Mr Collin both of whom it contended saw no second vehicle and placed the respondent's vehicle in the third lane. It was also contended that Mr Jaouhar's evidence was contradicted by Mr Keramidas' evidence that if a second vehicle had made contact with the respondent's, the second vehicle would have spun out of control. Significance reliance was placed on Mr Keramidas' evidence that the respondent's vehicle must have commenced its sideways movement from lane 3 and that it could not have been travelling in lane 2. The appellant also pointed to the absence of debris and a second set of skid marks as well as the absence of any relevant damage on the respondent's vehicle as contradicting Mr Jaouhar's evidence.
     
124. During the trial Mr Watson had sought to tender Mr Collin's statement which had previously been marked for identification, having been called for by Mr Cranitch. In the course of the debate during the trial about whether that statement should be admitted, the primary judge apparently made some observations drawing attention to the fact that Mr Collin could not recall how heavy the traffic was, whether it was dark, whether he had his lights on and matters relating to the surroundings. Mr Watson appears to have understood those observations as a suggestion that Mr Collin had not recalled salient features of the event in question. Mr Watson's written submissions dealt with Mr Collin's evidence as to each matter pointing out that he did in fact have a recollection of each, save as to whether his headlights were on as to which it was submitted "hardly looms as a major issue". The written submissions also pointed out that any deficiencies of this kind in Mr Collin's evidence needed to be compared with the more extensive deficiencies in Mr Jaouhar's evidence.
     
125. The appellant's written submissions also pointed out that both Mr Collin and Miss Cirino were independent witnesses who gave "clear and unprejudiced evidence of an event which s/he recalled well", that their motivation at the time of the accident had been to assist the injured and that, in substance, their evidence should be accepted.
     
126. The appellant's written submissions contended, based on an opinion expressed by Mr Keramidas, that the most likely reason the respondent lost control of the vehicle and the rear wheels locked was because the respondent applied the handbrake. The appellant observed that Mr Johnston also accepted that the sideways spin was consistent with rear wheel lock-up induced by an application of the handbrake.
     
127. Both the appellant's and the respondent's written submissions dealt with various theories as to the mechanism of the accident both of which referred to, and relied upon, the expert evidence.
     
128. The written submissions appear to have been provided to the primary judge prior to the commencement of the oral addresses.
     
129. In oral submissions Mr Watson, whom his Honour invited to address first, contended that there was only one person (Mr Jaouhar) who said there was a second vehicle. The primary judge then asked him whether Mr Collin's evidence of "flash/flash" permitted "the inference that there was a second vehicle". Mr Watson rejected that proposition - appearing to contend that Mr Collin had consistently said there was no other vehicle but that, in any event, the "flash/flash" was a peripheral matter. He also submitted that the proposition there was a second vehicle was contradicted by all objective evidence, relying in particular on Miss Cirino's and Mr Keramidas' evidence. He also submitted that the nub of Mr Colin's evidence was that he saw "one continuous movement", a movement which was not consistent with Mr Jaouhar's explanation of how the accident happened.
     
130. In his oral submissions Mr Cranitch criticised Miss Cirino's evidence as possibly amounting to a reconstruction, an honest but mistaken belief, drawing a contrast between her evidence and Mr Jaouhar's which he submitted was clear and corroborated by his statement to the police on the night of the accident that the respondent's vehicle had been travelling in lane 2.
     
131. One of the specific matters Mr Cranitch criticised Miss Cirino about was her observation of the handbrake, suggesting her observation that it was "up" fell into the category of "possible post-accident construct [sic, reconstruction]". The primary judge pointed out that Mr Jaouhar had said that the handbrake went up and that Mr Johnston said if a vehicle had been involved in an accident where the handbrake had been operated it was unusual to have it released. His Honour suggested, accordingly, that Miss Cirino may not be wrong in that regard. In reply, Mr Watson took up this issue pointing out that the reason Miss Cirino had been able to see the handbrake was because she had leaned into the car to put a blanket around the respondent.
     
132. For reasons which will become apparent, I will deal with only one aspect of the appellant's complaints about the damages awarded.
     
133. The respondent claimed that as a result of his injuries and disabilities he required at least ten hours a week assistance around the home and claimed the costs of the future attendant care services for that purpose on a commercial basis in his Statement of Particulars filed pursuant to UCPR 15.12.
     
134. That claim was quantified in the respondent's written submissions at trial at $35 an hour for one day's future attendant care over 59 years.
     
135. The appellant's primary written submission at trial in relation to this head of damages was that the respondent had not established that he was entitled to such services within the terms of s 128 of the MAC Act, whether as to the past or the future. In oral submissions the appellant, albeit briefly, complained about the respondent's claim for those services at a commercial rate of care.
     
136. In oral submissions at trial, when addressing this head of damages, the respondent's senior counsel said he was prepared to accept the appellant's counsel's submissions that "it is more likely than not to be at voluntary rates". Such a figure was mandated by s 128 of the MAC Act, this Court was informed, at $22 an hour.
     

SOME PRELIMINARY REMARKS

137. Before embarking on a necessarily lengthy and detailed analysis of the appellant's submissions, it is convenient to set out a catalogue of its complaints about the primary judge's approach to the fact-finding exercise. They can be conveniently grouped as follows:
     

(a) overlooking important issues, submissions and evidence;

(b) the judge acted of his own motion in the absence of cross-examination or submissions to reject evidence from the appellant's witnesses;

(c) preferring all evidence which favoured the respondent;

(d) rejecting all evidence which favoured the appellant;

(e) rejecting all the evidence of the appellant's lay witnesses as unreliable (often due to perceived inconsistence otherwise attributable to the passage of time or properly characterised as trivial), save for a tiny portion which was idiosyncratically treated as favouring the respondent's case;

(f) forgiving significant inconsistencies in Mr Jaouhar's evidence;

(g) rejecting the appellant's expert evidence absent objection from the respondent and absent sound reason and, in any event, without notice to the appellant.

138. As will become apparent when reading the following narrative, not all of the appellant's complaints about his Honour's reasons go to crucial issues. That remark is not intended to be critical of the appellant. It took that approach to demonstrate the cumulative effect of his Honour's approach. Moreover, it is apparent that the primary judge used what may be regarded as slight criticisms of a witness's evidence to reject its overall effect.
     
139. I should also preface the following analysis with some consideration of the appellant's complaint about the primary judge's criticism and/or rejection of a witness's evidence when there had been no cross-examination on the point.
     
140. Where counsel fail to cross-examine a witness, it is open to the trial judge to conclude that that counsel must be taken to have accepted the witness's version and not permit counsel to address in a fashion which asked the court not to accept it: Knight v Maclean [2002] NSWCA 314 (at [34]) per Heydon JA (Meagher JA and Young CJ in Eq agreeing). Heydon JA referred to Reid v Kerr (1974) 9 SASR 367 (at 375) and to Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 (at 236) where Mahoney JA said:
     

"Where, in a civil case, a witness is not cross-examined, it may normally be assumed that the evidence of that witness is not in contest. Therefore... in such a case a party who has not cross-examined a witness will not normally be entitled to submit in address that the witness's evidence should not be accepted.

But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross-examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption... It may be that the witness's evidence is fanciful or such as not to warrant cross-examination... or that cross-examination is foregone for other adequate reasons, for example, delicacy...

Similarly, failure to cross-examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested... The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter."

141. Heydon JA also postulated (at [35]) that the other course open to, albeit not mandatory, for a trial judge where there has been no cross-examination is to accept the witness's evidence, referring to Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 (at 426) per Hope and Glass JJA:
     

"A tribunal of fact may, and indeed generally should, have regard, in deciding what its findings of fact should be, to the failure of a party to cross-examine his adversary upon evidence which the adversary has given to satisfy the onus which lies upon him. As Browne v Dunn shows, it may be wrong in many cases for a party to suggest that the other party's evidence should not be accepted, if there has been no relevant cross-examination; and, if a tribunal of fact rejects that evidence in those circumstances, the result may be a wrong finding of fact, or, to use other language, an unreasonable ... or even a perverse finding of fact." (emphasis added)

142. These passages emphasise the course open to a trial judge faced with a submission by counsel where there has been no cross-examination. Prima facie a witness's evidence on that point will be accepted unless, as Mahoney JA explained, the circumstances indicate to the contrary. What is important, however, is that the party who is relying on the absence of cross-examination in framing submissions has the opportunity to explain why there are no such countervailing circumstances. The last passage emphasised in Hope and Glass JJA's reasons in Poricanin highlights the error a trial judge may make if s/he does not draw to counsel's attention an adverse view formed about unchallenged evidence.
     

CONSIDERATION

Lay witnesses

A Miss Cirino

143. I have earlier set out some of Miss Cirino's evidence when setting out the primary judge's reasons for not accepting the reliability of her evidence in all but one critical respects. It is necessary to repeat some of that evidence to place the appellant's complaints in context.
     
144. The primary judge recounted Miss Cirino's evidence as follows:
     

"63. In her evidence in chief Miss Cirino stated that she had finished her work at Chester Hill at 5.30 pm and was on her way home when the collision occurred. She nominated the time of the collision as being somewhere between 5.30 pm and 6.00 pm on the day in question. At the scene she was driving south in Stacey Street. She stated that she was in her vehicle travelling south in the kerbside lane at a speed that was just under the speed limit in readiness to make a left turn into a continuation of Stacey Street where it turned into Fairford Road.

64. Miss Cirino described her perception of becoming aware of a vehicle accelerating at a high speed in the lane closest to the median strip. She also stated that she was aware of hearing the revving of accelerating motors. From her use of the plural motors, I infer that apart from her own vehicle which was slowing down in readiness to turn left, there were two other vehicles in the vicinity.

65. In this context she identified what she described as the Plaintiff's small yellow vehicle, moving, as she said she saw it, from the lane adjacent to the median strip and across the other southbound lanes to appear and cross in front of her...She stated that the speed of that vehicle was much faster than that of her own vehicle.

66. Miss Cirino described her observation of the yellow vehicle starting to skid from the third lane which was the one closest to the median strip and to then continue to skid to the left whilst crossing the middle and kerbside lanes and then skid into collision with a kerbside pole and then continue on into a forceful collision with a nearby fence. She stated that she then applied her brakes hard, stopped, called for an ambulance and then approached the Plaintiff's vehicle and rendered assistance." (emphasis added)

145. The primary judge summarised (at [160]) his reasons for doubting the accuracy of Miss Cirino's evidence. While his Honour prefaced his summary by observing that her "faulty" recollection was "understandabl[e] due to the passage of time", he clearly relied on his conclusion her recollection was "faulty" (at [167]) to reject her evidence of the respondent's speed and lane of travel prior to the accident.
     
146. His Honour's summary was:
     

"160. Understandably, due to the passage of time, Miss Cirino's recollection was generally shown to be faulty in a number of important details which led me to doubt the accuracy of her testimony. Examples of such matters are:

(a) In her evidence in these proceedings she stated she was driving at about the speed limit but when she was reminded of evidence she gave in earlier proceedings in 2001 at Bankstown Local Court she conceded that on that occasion she had described her speed as being 40 kilometres per hour or relatively slow in order to be ready to make a turn at the time;

(b) She said, variously, that her attention had first been drawn to the Plaintiff's vehicle by the sound of revving motors and screeching tyres. These two observations coming from the same vehicle are apparently inconsistent;

(c) She could not recall it being fully dark, but thought it was 'darkish'. She later said she didn't think it was dark. This was contrary to the objective evidence which I have accepted and it was also contrary to the earlier evidence she gave in the Local Court to the effect that it was dark;

(d) She could not recall whether the lights on her vehicle or on the vehicles around her were on which was contrary to her evidence in the Local Court to the effect that it was night time and dark and she could only see headlights;

(e) Her description of the 'up' position of the handbrake lever in the Plaintiff's vehicle was not a description she had given earlier to the investigating police. It is also inconsistent with what is shown in photograph Exhibit 'J' which was taken by the police at the scene;

(f) Her description '...the car was actually almost in the back seat because of the force so I could clearly see the handbrake' which she invoked to support her contention that her view of the handbrake was not obscured by the Plaintiff's position in the vehicle was, in my view, not consistent with the photographs Exhibit 'G' and Exhibit 'J' showing the post-collision state of the interior of the vehicle."

147. The appellant submits that these six reasons were baseless or insufficient to reject the overall thrust of her evidence.
     
148. Insofar as the primary judge said there were inconsistencies in her evidence of her speed (at [160](a)), it submitted the primary judge misunderstood the evidence. As to his Honour's finding of an "inconsistency" in her evidence on the kind of sound she heard (at [160](b)), the appellant complains that his Honour did not refer to her other evidence explaining the matter and, inconsistently, later in his reasons (at [165]), accepted this part of her evidence and relied upon it to find there was another vehicle. As to the primary judge's criticism that Miss Cirino thought it was "darkish" rather than "dark" (at [160](c)), the appellant submitted this might be considered to be hair-splitting. As to her inability to recall whether she had her headlights on or whether they were illuminated on the vehicles around her (at [160](d)), the appellant complained this did not seem "a strong basis for rejecting an independent witness's evidence".
     
149. Finally, insofar as the primary judge criticised Miss Cirino as having given inconsistent evidence about whether the handbrake in the respondent's vehicle was in the "up" position (at [160](e) and (f)), the appellant submitted that this criticism was strange in light of the primary judge's finding that the handbrake was on (see [103], [116] (b), [124], [196] - [197], [199], and see the extract of the respondent's claim form set out at [465] clearly stating that the respondent had "applied the handbrake which caused [his] vehicle spin out of control..."). To the extent the primary judge's criticism was based on an alleged contrast between her observation and photographs taken of the respondent's vehicle sometime after she looked into it, the appellant submitted it was invalid as the photographs were taken when the scene had been changed. It also pointed out that the respondent's counsel did not suggest any inconsistency to Miss Cirino - making it more puzzling that his Honour claimed to discern an inconsistency.
     
150. I turn to consider each of the appellant's criticisms of his Honour's treatment of Miss Cirino's evidence. At some stages it will be necessary to repeat earlier observations/references to his Honour's reasons to ensure contextual accuracy.
     

A1. Inconsistencies as to own speed

151. The primary judge set out the descriptions Miss Cirino had given about the speed at which she was travelling when the accident occurred, both in the Local Court proceedings in 2001, and at trial. In the Local Court proceedings, his Honour said (at [70]) that Miss Cirino "had ventured a guess as to her own speed...as being 40 kph"; his Honour later said (at [71]) of her Local Court evidence, "she said she was travelling at 40 kph."
     
152. His Honour said (at [70]), Miss Cirino's evidence at trial was:
     

"[T]hat she had not been especially looking to see at what speed she had been travelling at the time but stated that she had been in the process of slowing down from travelling at about the speed limit which was 70 kph."

153. His Honour noted (at [71]) that Miss Cirino later said, under cross-examination, "that [she] could not now recall her exact speed."
     
154. His Honour regarded these three statements (I guess I was travelling at 40 kph, I was in the process of slowing down from 70 kph, and I cannot not recall exactly) as being "at variance" with one another. That "variance" caused his Honour (at [71]) "to carefully consider her reliability as a witness." These variances were given (at [160]) as one example of Miss Cirino's recollection being "faulty in a number of important details which led me [his Honour] to doubt the accuracy of her testimony."
     
155. To explain its criticism of the description of Miss Cirino's statements as to her speed as "inconsistent" and reflecting a misunderstanding of her evidence, the appellant took the Court to Miss Cirino's evidence before the Local Court in 2001. During examination-in-chief, she said
     

"Q. Now what speed were you travelling at?

A. I was probably about 100, 150 metres away from turning into that street so I would've been going relatively slow to make the turn. I don't know exactly what speed I was doing but.

Q. What do you think that you were going?

A. Forty kilometres an hour I guess. It's just a guess."

156. During cross-examination in the Local Court, Miss Cirino responded to questions about her speed as follows:
     

"Q. And you were driving you say about 40 kilometres an hour, is that right?

A. That's a guess, yes.

Q. A guess?

A. Because I was slowing down to turn the curve and I'm obviously not going to be going fast-

Q. And that's what you do, isn't it, when you're going to turn left you slow down and you put your indicator on, don't you?

A. Yes."

157. Before the primary judge, Miss Cirino gave the following evidence-in chief:
     

"Q. Immediately before becoming aware of these events, do you have a recollection of the speed at which you were travelling?

A. My left turn was coming up so I would have been going just under the speed limit."

158. Miss Cirino was cross-examined about this evidence, as well, it appears, as about her evidence in the Local Court. (The first question in the extract below appears to have referred to Miss Cirino's evidence before the primary judge.)
     

"Q. ... I want to ask you about - you were driving alone - you said you were travelling at about the speed limit just shortly prior to this event occurring. Is that right?

A. Yes.

Q. Are you sure about that?

A. Well, I always try to travel at the speed limit and my turn was coming up so I would have been slowing down.

Q. That's your present recollection about that, is it? That's your recollection today about the speed you were doing?

A. Yes.

Q. It wasn't your recollection in 2001, was it?

A. I can't remember.

...

Q. But you see you came to court and on your oath you said - you were asked about your speed, that's right, you remember that question, don't you?

A. Yes.

Q. And in answer to that you said you were travelling at about the speed limit. That's true, isn't it?

A. If that's what it says. I can't remember.

Q. But that's not what you said in 2001, is it?

A. (No verbal reply.)

Q. Is it?

A. I don't know what I said. I think I was asked to have a guess at what speed I was doing.

Q. Well, you see, you were about to turn left, weren't you?

A. Shortly, yes.

Q. And you were in the far left-hand lane, a turning lane, moving into the continuation of Stacey Street which goes off to the left?

A. Correct.

Q. And you'd slowed down, hadn't you, to do that left-hand turn?

A. The left-hand turn was coming up. It was still a bit of a distance away.

Q. And you thought you were doing about 40 kilometres per hour, didn't you, in 2001?

A. If that's what I said.

Q. Well, you come on your oath today to tell the truth and you've said the speed limit in 2001, today you say about 40 kilometres per hour. What's the truth?

A. No, what I did say was I said I would have been doing the - just under the speed limit. I can't recall the exact speed I was doing.

...

Q. There's a big difference between 40 kilometres per hour and 70 kilometres per hour, isn't there? It's about nearly half or [sic, of] 70 kilometres per hour, isn't it, 40 kilometres?

A. Yes.

Q. There's a big difference don't you agree?

A. I can't recall my exact speed."(emphasis added)

159. Mr Watson drew the Court's attention to three points. First, he asked the Court to notice that Miss Cirino was only making a guess about her speed during the Local Court proceedings, a point she reiterated during cross-examination in that court.
     
160. Secondly, Mr Watson asked the Court to accept that Miss Cirino did not give affirmative evidence about her speed before the primary judge.
     
161. Finally, and this was a minor matter, Mr Watson pointed out that in the passage emphasised above, the cross-examiner below put an incorrect proposition to Miss Cirino as to her evidence-in-chief in those proceedings.
     
162. The appellant's ultimate submission was that the primary judge treated Miss Cirino unfairly in regarding her recollection of her speed as faulty, when she had never made a positive statement as to what her speed was, in either the Local Court or at trial.
     
163. The respondent did not draw attention to any additional passage of evidence which would cast any different light on the appellant's criticism of the suggest the primary judge's conclusion.
     
164. In my view the primary judge's criticism of Miss Cirino's recollection of her speed prior to the accident was unwarranted. The thrust of her evidence both in the Local Court and at trial was that she was slowing because her left-hand turn was approaching - but his Honour (at [160](a)) appears to have regarded that answer as only having been given in the Local Court.
     
165. It was clear that in the Local Court proceedings she guessed her speed was 40 kph - whereas the primary judge treated her evidence in the Local Court as having been, in effect, an affirmative statement that her speed was 40 kph. At trial she said "just under the speed limit" - an answer the cross-examiner confusingly turned into "at about the speed limit" - a mistake the primary judge reproduced at [160](a) - even though as the passage of her evidence I have extracted demonstrates, she had corrected the cross-examiner shortly after and reiterated her position in the Local Court that she could not remember the exact speed she was doing.
     

A2. Inconsistencies as to sounds heard

166. The next criticism of Miss Cirino's "faulty" recollection to which the primary judge referred (at [160](b)) was her "apparently inconsistent" evidence as to what sound first drew her attention to the respondent's vehicle. His Honour considered that Miss Cirino had "variously" reported hearing the screeching of tyres first, the revving of motors first, or hearing those sounds simultaneously:
     

"76. In her evidence in these proceedings Miss Cirino stated that her attention was drawn to the Plaintiff's vehicle when she heard the sound of revving. She also gave that evidence in the Local Court proceedings. Significantly, in those proceedings she agreed in cross-examination that in an earlier statement given to the police she had said 'I first noticed a car when I heard the screech of tyres'. Given that the screeching tyres only left skid marks in the middle lane this also calls into question whether Miss Cirino could have seen the Plaintiff's vehicle in the lane adjacent to the median strip in the manner she described.

77. In my view there is a good deal of confusion within the cumulative recollections that were related in the evidence of Miss Cirino, namely, the quoted portion of her statement to the police, her evidence in the Local Court proceedings and the evidence she gave at the trial, as summarised above."

167. Mr Watson submitted that Miss Cirino's evidence explained these apparent inconsistencies.
     
168. In the Local Court, Miss Cirino's evidence-in-chief on this point was:
     

"Q. What made you first become aware of this vehicle?

A. I always drive with my window down and I would've heard his motor, engine I guess.

....

Q. Okay, just tell us what you did see or did hear or did ---

A. Sorry, okay. I heard his motor. I was only aware of it you know a car and a half, two cars away, that's when I heard it.

Q. What direction did you hear this motor from do you think?

A. It was coming from behind me, is that what you mean?

Q. What happened then?

A. This car that I heard was in the lane closest to the median strip."

169. During cross-examination in the Local Court, Miss Cirino was referred to a statement she made to the police (presumably that to which his Honour referred at [76]), which is not in evidence. The exchange was as follows
     

"Q. What first drew your attention to the yellow car, what was it that first made you turn around and look?

A. I could hear his motor or engine, sound of his car.

Q. Are you sure that's the case?

A. Yes.

Q. See that's not what you told the police, is it, in your statement? Do you recall you made a statement about this matter in February of this year?

A. Yes.

Q. You see what you told the officer who you made the statement to was 'I first noticed a car when I heard the screech of tyres. I looked and saw the yellow car skidding across from the lane.' So it wasn't the engine you heard at all, was it, it was the screech of tyres, that's the first thing that made you turn and look at the car, you agree with that, don't you?

A. Just trying to remember now. Maybe it was both because you can hear an engine and a screech of tyres at the same time.

Q. It might have been the engine and the tyres, it might have been the tyres, it might've just been the engine, you aren't sure, are you?

A. Well definitely was an engine and probably was a screech of tyres when he started to turn I guess.

...

Q. So which is right do you think, Miss Cirino, is it that you first noticed this car when you heard the screeching brakes or is it what you say now, it could've been the engine? It's quite an important point you see.

A. I'm just replaying the whole thing in my mind, that's all.

Q. Take your time please. We'd rather get the right version out.

A. I heard the car - I heard the car, looked to my right, then heard the tyres.

...

Q. What you said in February is what happened, isn't it, you heard the screeching of tyres, you instinctively looked to your right to see where it was coming from, that's what happened, isn't it?

A. As I said just before, to my recollection to this day I believe it was the motor, I looked and then the tyres."

170. At trial, Miss Cirino gave the following evidence about the sounds that drew her attention to the respondent's car:
     

"Q. What did you become aware of?

A. A car travelling in the lane closest to the median strip, accelerating, you know, at a - at a high speed.

Q. What was it that made you aware of that?

A. I could hear, like, the motors revving - like, the acceleration."

171. Miss Cirino was also cross-examined about these matters:
     

"Q. When did you hear the screeching of tyres?

A. As it started to come into the second lane.

Q. Did you hear it the same time you heard the car revving?

A. No, the revving was before.

Q. So you heard the sound of an engine revving, is that right?

A. That's what drew my attention to the car in the first place.

...

Q. When you looked to the right he was already skidding, wasn't he?

A. No.

Q. How do you know that?

A. Because I heard the revving and then he came across and then skidded in front of me."

172. The appellant submitted there is no relevant inconsistency in this evidence that could contribute to a finding of faulty recollection. With the exception of the police statement in 2001 it submits Miss Cirino has maintained consistently that she heard the revving motors first, then the sound of screeching tyres.
     
173. It may be putting it too high to say that either there was "a good deal of confusion" (at [77]) in Miss Cirino's recollection as to what first drew her attention to the car, or that her evidence demonstrated her recollection "was generally shown to be faulty". It is not clear, however, that Miss Cirino agreed that she had given a statement to the police that it was the screech of tyres which drew her attention to the car. I will assume in the cross-examiner's favour that she had made such a statement. It is not apparent why the appellant suggested that his Honour's approach to this issue should be assessed without reference to her statement to the police. On the aforementioned assumption, there was clearly a difference between the statement to the police and her statement at trial that she first heard the car's engine then a screech of tyres. It was not, however, accurate to describe her as having "said, variously, that her attention had first been drawn to the Plaintiff's vehicle by the sound of revving motors and screeching tyres..." as if she had indiscriminately switched between accounts. Both in the Local Court and at the trial she consistently said she "heard his motor" first, then "heard the tyres".
     
174. However the appellant's more significant criticism of his Honour's use of Miss Cirino's evidence in this respect lies in the inconsistency in his Honour's approach in rejecting her evidence due to faulty recollection of the first sounds she heard, then relying on her evidence that she first heard the motor/engine then the tyres screeching, both to conclude that the respondent commenced skidding in lane 2 and that, on the supposition that she heard both sounds at the same time, the presence of two other vehicles was suggested (see [165]). I turn to consider this aspect of the appellant's attack on his Honour's use of Miss Cirino's evidence concerning the sounds she heard.
     

A3. Reliance on "inconsistent" evidence regarding sounds heard

175. I turn to consider the appellant's complaint that, having rejected Miss Cirino's evidence about the sounds she heard as infected with "confusion" (at [77]), the primary judge then relied on that evidence to find there were two cars involved in the accident.
     

i. "Screeching" and "revving"

176. First, the appellant points to his Honour's comment about Miss Cirino's evidence (at [165]):
     

"Significantly, the sound of tyres screeching is very different from the sound of revving motors. It is unlikely that she could have heard both types of sound coming from the same vehicle at the same time. This suggests the presence of two other vehicles." (emphasis added).

177. The appellant submits that this conclusion was inconsistent with the overwhelming thrust of Miss Cirino's evidence in which she rejected the proposition that more than one car was involved in the accident.
     
178. I have already set out (at A2) a substantial passage of Miss Cirino's evidence in the Local Court. It is apparent the primary judge had close regard to her Local Court evidence in reaching his conclusions about her "faulty recollection". It is also apparent that in the Local Court she consistently used the word "motor" or "engine" to describe the sound she heard from the car she said she saw in the median strip.
     
179. In addition to the passages set out at A2, the appellant relied upon the following excerpts from Miss Cirino's evidence at trial:
     

"Q. What did you become aware of?

A. A car travelling in the lane closest to the median strip, accelerating, you know, at a - at a high speed." (emphasis added)

"Q. What was it that made you aware of that?

A. I could hear, like, the motors revving - like, the acceleration.

Q. Did that noise get your attention?

A. Yes.

Q. Did that noise cause you to look in the direction of the noise?

A. Yes, yes.

Q. Did you look and see something?

A. Yes.

Q. What did you see?

A. I saw a small, yellow car.

Q. You described before three lanes. Yours is the number 1 or kerbside lane. In which lane was the small, yellow car?

A. So the lane closest to the median strip which would be lane 3.

...

Q. What did you see next? What happened next?

A. As that car - as the yellow car came parallel to mine --

...

Q. Did it move?

A. It was in - it was still in the third lane. As it became - so I'm still in the first lane, parallel to mine - sharply then swerved across the other lanes directly in front of my car, missing it by about half a metre.

...

Q. You said that you saw it move across to the left.

A. Mm mm.

Q.Is that --

A. Yes, that's correct.

Q. From where did this move to the left commence? In which lane was the yellow car when that --

A. Still in the third lane.

Q. Did you get a good view of this?

A. Yes.

Q. Did you see the yellow car move across the middle of the three lanes or number 2 lane?

A. It moved across from the third lane into number 2 and then in front of me.

Q. Then it crossed the kerbside or number 1 --

A. Number 1 lane, correct.

Q. You said that it crossed. When it did, how far from your car?

A. About half a metre.

Q. Did you do something in your own car to control it?

A. Yeah, well I broke straight away.

Q. Did you hit the brakes hard?

A. Yes.

Q. Did you see what happened to the little yellow car?

A. Yes.

Q. What happened to the little yellow car?

A. It then started skidding further down the street.

Q. When did the skid commence?

A. It started skidding from the third lane as it came into the second lane into mine and then continued skidding.

Q. When you say that the yellow car moved from the number 3 lane or median strip lane across to the left --

A. Yes.

Q. -- was it at that time that you say that it started skidding?

A. Yes.

Q. That expression skidding, why do you use that word?

A. Because I could hear the screeching of the tyres.

...

"Q. Miss Cirino, in the whole of this event from the time you heard the revving and your attention was caught, did you see any other car involved in this incident apart from the little yellow car?

A. No." (emphasis added)

...

... Did you see any other car involved in this dramatic incident apart from the little yellow car?

A. No, I didn't."

180. Miss Cirino stopped her car immediately and ran to the yellow car "to see if he was okay". Having seen the respondent's condition (she "was talking to him, he wasn't responding"), she returned to her vehicle to retrieve a blanket which she placed over him.
     
181. During cross-examination Miss Cirino gave the following evidence:
     

"Q. So you're safe, you're in the lane, you're only going to turn left, what relevance was it to you what the traffic going down Stacey Street into Fairford Road was doing?

A. Because I heard the - revving noise.

Q. Then immediately after the revving noise you see this car turning across in front of you. It happened instantaneously, didn't it?

A. No, I saw it in the third lane first when it was still revving.

Q. You didn't see any other cars around, did you?

A. No.

Q. Is it because you don't recall seeing other traffic around or you affirm positively you didn't see traffic around?

A. There was no - there was no other car next to us, no.

...

Q. Did you hear a screeching of tires?

A. Yes

Q. When did you hear the screeching of tires?

A. As it started to come into the second lane.

Q. Did you hear it the same time you heard the car revving?

A. No, the revving was before.

Q. So you heard the sound of an engine revving, is that right?

A. That's what drew my attention to the car in the first place.

Q. What drew your attention to a yellow car. Is that right?

A. Well, it was a yellow car when I saw it come across, yes.

Q. But by that stage may I assume that there was a screech of tires?

A. When it's coming across?

Q. Yes.

A. Yes.

Q. But what directed your attention in that particular direction was the sound of an engine revving. That's true, isn't it?

A. Yes.

Q. At that stage you didn't know what it was?

A. Well, I know it was the car.

Q. You say it was the car. It might have been another car close by with its engine revving. Do you agree with that?

A. No.

Q. Why?

A. Because when I looked to see there was only one car there.

...

Q. When you looked to your right he was already skidding, wasn't he?

A. No.

Q. How do you know that?

A. Because I heard the revving and then he came across and then skidded in front of me.

...

Q. I'm going to suggest to you that there was another car present on the night but you just didn't register it, because you weren't paying particular attention to the traffic conditions you just didn't see that there was another car there, did you?

A. No, there was - there was no other car there.

...

Q. You had no reason to pay particular attention as to which lane this car was travelling in, did you?

A. Well, I - I heard it, I heard the revving. That's why I paid attention.

Q. You heard the revving. You heard the revving of a car. You don't know whether it was this car, do you?

A. Well when I looked that was the only car that was there.

...

Q. That you remember seeing - precisely. What you don't remember, I suggest to you, was that there was at least one other car and possibly other cars in the middle lane quite close upon you.

A. No, I didn't see that.

...

Q. I'm suggesting to you that that's what occurred. You just don't remember, do you?

A. I did not see another car.

...

Q. I suggest to you that it is possible you were mistaken as to precisely where this car was on the roadway before it began to spear across in front of you.

A. No.

Q. Your recollection was absolutely impeccable and you could not possibly be mistaken.

A. I remember seeing it in that lane closest to the median strip.

Q. I suggest to you that your impression, and that's all it could have been, was entirely misconceived. Do you agree?

A. No.

Q. And that there was in fact another car on the roadway in the outside lane. Do you agree with that?

A. Another car apart from the vehicle in question?

Q. Yes.

A. No.

Q. Not even the possibility that there could have been another car.

A. No.

Q. And that the car that went across in front of you was in fact in the middle lane and was forced out of its lane by a car which was indeed revving its engine.

A. No.

Q. There's absolutely no possibility for error despite all your other imperfections of memory. Is that what you're saying?

A. Yes." (emphasis added)

182. The appellant also complains that the primary judge's criticisms of Miss Cirino (at [160](b)) that her "two observations [of revving motors and screeching tyres] coming from the same vehicle are apparently inconsistent" was never put to Miss Cirino nor was it the subject of submissions. It submits that there was no evidence (expert or otherwise) on which his Honour could find it was "unlikely" both sounds would be heard from one vehicle.
     

ii. "Motors" plural

183. The appellant complains about the primary judge's use of Miss Cirino's statement, during her evidence-in-chief, "I could hear, like, the motors revving - like, the acceleration" to make the following finding (at [155]):
     

"I regard this portion of her evidence in which she explicitly and unambiguously refers to the plural of 'motors' revving under acceleration immediately prior to the accident as being critical to a determination of a number of issues. I find that the answer 'motors' in the plural represented a candid recollection of what she heard at the scene, namely the sound of two other southbound vehicles to her right. I find that at the time she heard these vehicles she then took the opportunity to 'look' in order to make observations." (emphasis added)

184. Once again, the appellant submits that this finding was inconsistent with the overwhelming force of Miss Cirino's evidence that she only heard and saw one car.
     
185. The appellant also complains that it was not the respondent's case that in making the statement, "I could hear, like, the motors revving - like, the acceleration", Miss Cirino was referring to plural "motors". It points out this was not the cross-examiner's understanding - this proposition, at least reliant on "motors" was not put to her. Nor - again - was the interpretation the primary judge gave this evidence the subject of submissions by either party - nor did his Honour suggest it at any stage. Indeed, the appellant pointed out that in the respondent's oral submissions at trial counsel used the singular, "motor" ("Miss Cirino hears a revving motor") to describe Miss Cirino's evidence as to what she heard.
     
186. Finally, the appellant complains that the primary judge used the "motors" evidence idiosyncratically. He rejected all Miss Cirino's evidence as to there only ever having been one car, but used that one word as critically supportive of the respondent's case (see [156]).
     

A4. The darkness

187. The primary judge found (at [30]), on the basis of meteorological evidence, it was "already completely dark" when the accident occurred.
     
188. The primary judge gave (at [160](c)) a further reason for treating Miss Cirino's evidence with caution:
     

"She could not recall it being fully dark, but thought it was 'darkish'. She later said she didn't think it was dark. This was contrary to the objective evidence which I have accepted and it was also contrary to the earlier evidence she gave in the Local Court to the effect that it was dark".

189. The appellant does not criticise the primary judge's observation that Miss Cirino said in the Local Court proceedings that it was "dark" as evidenced by the following exchange.
     

"Q. What type of car was that [that Miss Cirino observed behind her in the same lane]?

A. It was night, I could only see headlights. I can't establish what kind of car that was.

Q. So it was dark, is that what you're saying, you couldn't see the types of cars, all you could see were headlights, is that right?

A. Well, it was 5.30, 6 o'clock in the winter, I mean it was dark - ".

190. Miss Cirino gave the following evidence during cross-examination at trial:
     

"Q. It was dark by then, wasn't it, at the time of the accident?

A. It was darkish.

Q. Darkish. Do you know what time the sun set on 6 June or 5 June?

A. No.

Q. It set before 5 o'clock. I want you to accept that.

A. I -

Q. This accident occurs about 6 o'clock. It was dark, wasn't it?

A. I recall it being darkish.

Q. Darkish? What does darkish mean?

A. Well it's not pitch black, it's not fully dark, no.

...

Q. You'd agree with me that when it's dark when you look behind you all you can basically see is headlights, is that right?

A. Well, you can see other - you can see cars obviously attached to the headlights.

Q. Yes, but basically in terms of picking up detail the only thing that really strikes you when you look behind you is cars with headlights on if it's dark.

A. Yeah, but I don't think it was that dark. I could see more than that.

Q. You said that you couldn't identify the car behind you when you were asked about this in 2001 because all you could see was headlights. That's what you said in your sworn testimony, wasn't it?

A. I can't remember."

191. The appellant submits that the distinction his Honour drew between the "objective" evidence as to the state of the light and Miss Cirino's description of it as "darkish" as "hair-splitting" and of no real substance.
     
192. Several points may be made about this issue. First the primary judge said the objective evidence was that it was "dark". That evidence was a document apparently downloaded from the Australian Government's Geoscience Australia website setting out the time for sunrise and sunset on 5 June 2000. It did not set out the period of twilight (dusk) that evening. While one might readily accept that in June that period will be substantially shorter than in summer, the short point is there was no evidence before his Honour that it was "dark" in the sense of pitch black which his Honour seems to have regarded as established merely by the fact the sun had set.
     
193. Miss Cirino's description of the state of light as having been "darkish" would be consistent with the fact it was still dusk - which was in fact the expression Mr Collin used to describe the state of the light - a proposition his Honour also used as impairing the reliability of his evidence.
     
194. The respondent did not suggest that there was anything about the state of the light on the evening which impaired Miss Cirino's observations of the critical events of the accident. I would accept the appellant's submission that it was, at the end of the day, a hair-splitting point. It would not be decisive of its procedural fairness complaint, but gives context to the reasons the primary judge gave for treating Miss Cirino's recollection as faulty.
     

A5. Headlights

195. The appellant makes a similar submission about the primary judge's criticism (at [160](d)) of Miss Cirino's evidence that she could not recall whether her headlights or those of the cars around her were on at the time of the accident. The Local Court evidence to which his Honour refers is that reproduced above at [189].
     
196. The appellant submits that Miss Cirino's inability to remember at trial whether her headlights were on did not seem a strong basis for rejecting an independent witnesses' evidence.
     
197. I would accept that submission, particularly when the criticism of Miss Cirino was in a paragraph which commenced with the primary judge's acceptance that Miss Cirino's recollection may have faded with the passage of time.
     

A6. Handbrake

198. Miss Cirino's evidence regarding the position of the handbrake (that is, "up") in the respondent's car after the accident was also criticised by the primary judge (at [160](e)) as "not a description she had given earlier to the investigating police [and] also inconsistent with what is shown in photograph Exhibit 'J' which was taken by the police at the scene".
     
199. She gave the following evidence at trial:
     

"Q. Miss Cirino, there's been a discussion in this case about the handbrake and the little yellow car. Did you happen on that evening to notice the handbrake of the little yellow car as it was at the crash scene?

A. Yes, it was up."

200. In cross-examination it was put to Miss Cirino that she had not mentioned the handbrake either to the police at the scene or at the Local Court. Her response to both questions was that she could not recall.
     
201. Miss Cirino also said in cross-examination:
     

"Q. ...Why did you pay attention to the handbrake decision [sic, position]?

A. Well, I pay attention to the whole - everything in the vehicle and try to work out what happened.

Q. But wasn't the driver in the vehicle at the time?

A. Yes, he was.

Q. And was he still in the driver's seat?

A. Yes, he was.

Q. And weren't you concerned about him?

A. Yes, I was but I had already called the ambulance.

Q. Correct me if I am wrong, but isn't the handbrake immediately beside him on the inside of the car?

A. Yes.

Q. How could you possibly determine what the position of the handbrake was when there's this gentleman who is in a serious condition between you and the handbrake?

A. Because the car [sic, front seat?] was actually almost in the back seat because of the force so I could clearly see the handbrake."

202. His Honour further commented (at [160](f)):
     

"Her description '...the car was actually almost in the back seat because of the force so I could clearly see the handbrake' which she invoked to support her contention that her view of the handbrake was not obscured by the Plaintiff's position in the vehicle was, in my view, not consistent with the photographs Exhibit 'G' and Exhibit 'J' showing the post-collision state of the interior of the vehicle."

203. Exhibit "J" comprised two photographs of the respondent's vehicle taken some time after the accident. The primary judge had earlier concluded when summarising Miss Cirino's evidence (at [68]) that it did not show the handbrake lever in the "up" position and later (at [94]):
     

"There is no evidence as to precisely when the photograph Exhibit 'J' was taken nor was there any evidence as to safe custody of the vehicle in the period from the time of the collision until the time when the photograph was taken."

204. The appellant submits that the apparent inconsistency between exhibit "J" and Miss Cirino's evidence was not a valid reason for criticising her recollection. The appellant submits first that the photographs do not reveal with certainty the position of the handbrake. Secondly, as the primary judge recognised, there was no evidence as to how much time elapsed between Miss Cirino's observation of the vehicle and the taking of the photographs, nor any evidence establishing the handbrake had not been interfered with during that period. Thirdly, counsel for the respondent did not put to Miss Cirino the proposition that her evidence was inconsistent with exhibit "J" - a stance the appellant submits was quite proper in light of the time the photographs were taken. It contended that the fact counsel for the respondent did not suggest any inconsistency to Miss Cirino made his Honour's finding in this respect "more puzzling".
     
205. Finally, and in any event, the appellant points out that the primary judge found (at [15], [186]) that the respondent did pull on the handbrake during the critical moments leading to the crash. Accordingly, Miss Cirino's evidence on this point accorded with his Honour's factual finding. The appellant submits, cogently in my view, that his Honour ought to have taken her recollection of this fact as indicating the accuracy of her evidence, rather than the opposite.
     
206. The respondent's only "case" on Miss Cirino's handbrake evidence at trial appears to have been that she had not given evidence about it in the Local Court to which she quite sensibly replied that she may not have been asked, and to suggest she may have been mistaken - a proposition she rejected.
     
207. Exhibit "J" shows the driver's seat almost fully flat and, as Miss Cirino said, apparently pushed towards the rear of the vehicle. The gearstick console is distorted to about 70 degrees. The area where the handbrake lies is very dark, but also appears somewhat twisted. It is difficult in my view to say whether or not it is "up".
     
208. In my view, there was no sound reason for his Honour to have criticised Miss Cirino's evidence in this respect. The probability that the handbrake was "up" when Miss Cirino looked into the car almost immediately after the collision is inherently plausible in light of the incontrovertible evidence that it was applied by the respondent prior to the vehicle coming to rest. Indeed, as the exchange between Mr Cranitch and his Honour in oral submissions set out above reveals, this appears to have been the view his Honour held at that stage. Mr Watson sought to reinforce that view by drawing his Honour's attention to the opportunity Miss Cirino had for seeing the handbrake.
     
209. Further, assuming exhibit "J" did reveal the handbrake to have been "down", there was no necessary inconsistency between her evidence that it was "up" when she saw it and what was so depicted having regard to the apparent acceptance at trial that there was no evidence as to precisely when exhibit "J" was taken: see primary judgment (at [94]).
     

B. Mr Collin

210. Mr Collin's evidence was summarised by the primary judge in the following terms:
     

"52. ...In his evidence in chief he stated he was travelling south in the kerbside lane of the three southbound lanes in Stacey Street. He described his own vehicle as being a medium sized four-wheel drive vehicle which was to a degree elevated...

53. He stated that he saw traffic ahead in each of the three southbound lanes. When he was asked to describe what he had seen in the lead-up to the collision he stated he saw a car 'flash' between traffic from the far right lane adjacent to the median strip into the middle lane and also from the middle lane to the kerbside lane. He stated there were two 'flashes' between the gaps in the traffic followed by the appearance of dust and debris.

54. When asked to describe the angle at which he saw the vehicle ahead move across the line of traffic he said it appeared to him to be a very acute angle, not like cars changing lanes. After the collision he said he saw that another vehicle had stopped in the southbound lane ahead of him so he stopped some distance back from that point and he turned on his hazard lights to try and make the area safe before going to the scene of the collision to render assistance. He stated that he had waited at the scene until the police had left...

...

58. Mr Collin claimed that at 6 pm on the day in question, which he described to be late afternoon, it was not dark or at least not fully dark but dusk. He could not recall and did not know whether the headlights were illuminated on his own vehicle. In his initial evidence Mr Collin thought his vantage point at the time of the accident was some 200 metres away. Later he agreed the incident could have occurred something like 100 metres ahead of him. He said at the time traffic was moving normally. He could not say how heavy the traffic was at the time.

...

61. When Mr Collin was asked about the speed of the Plaintiff's vehicle he said he could not judge the speed of the vehicle but knew the speed was abnormally fast..."

211. The primary judge rejected Mr Collin's evidence as to the respondent's speed (at [146]) and his description of the accident overall (at [149]). The appellant complains about the manner in which he did so.
     

B1. Speed

212. Mr Collin gave the following evidence about speed:
     

"Q. The vehicle that you saw move from what you call the median lane, across the centre lane and across the gutter lane, did you see how fast it was moving, comparative to the other traffic?

A. I can't judge speed. I know it was abnormally fast." (emphasis added)

213. The primary judge determined this evidence to be of "little if any probative value" (at [146]):
     

"Mr Collin said he could not judge the speed of the Plaintiff's vehicle although he formed an impression that the vehicle was being driven abnormally fast. The critical question for me to decide is, given the circumstances in which Mr Collin acquired that impression, whether his impression was correct. Without intending any criticism whatsoever of Mr Collin, I find that he had only a very limited opportunity to observe the Plaintiff's vehicle traverse distance over time. Further, his observations were made at least one hundred metres if not some several hundred metres away to the north. I therefore find that his description of the Plaintiff's vehicle travelling abnormally fast to be of little if any probative value. I find that this is so because Mr Collin was not able to describe the time or distance over which he had observed the travel of the Plaintiff's vehicle or even whether his observation of the Plaintiff's vehicle was constant. In these circumstances I regard Mr Collin's estimate of the Plaintiff's speed to have been formed on an extremely limited and inadequate basis to be of probative value." (emphasis added)

214. The appellant complains that his Honour's approach to Mr Collin's evidence was "unfair" in circumstances where the respondent did not challenge this aspect of Mr Collin's evidence, and made no submissions that correspond to the reasons given by his Honour for rejecting it.
     
215. The respondent accepted that the primary judge's approach did not reflect its submissions as to Mr Collin's evidence of his observations of speed. He pointed out, however, that that evidence related to the speed of whatever Mr Collin saw moving from the median strip lane across the road. It accepted the primary judge appeared to have misunderstood this evidence insofar as his Honour appeared to have understood it to be intended to be descriptive of the respondent's progress southwards prior to the accident.
     
216. I would accept the appellant's criticism of the primary judge's approach. The issue of the speed of the respondent's vehicle was important to the appellant's case in two respects. First, that the speed at which the respondent had been travelling was one of the reasons he lost control of his vehicle. Secondly that his speed demonstrated he was guilty of contributory negligence. Although "abnormally fast" did not give a measure of the respondent's speed, when taken with Mr Collin's other evidence that prior to the incident the traffic was moving normally, it went some way to establishing the appellant's case on the speed issue.
     
217. This is so even if one accepts the respondent's submission that this evidence related to the lateral progress of the vehicle Mr Collin saw. That is because, as I understand the appellant's case, the respondent's vehicle was travelling too fast in the median lane before the accident - a velocity it might have been expected to sustain as control of the vehicle was lost. The respondent's proposition may be ultimately correct and persuasive in his favour, but the appellant was entitled to have the opportunity to persuade the primary judge to its view of that evidence. As it was the submissions were left on the basis that part of Mr Collin's evidence was not challenged.
     
218. The primary judge should not have made critical findings adverse to Mr Collin and the appellant's case without - at least - giving the appellant an opportunity to deal with them.
     

B2. Description of the accident

219. Mr Collin's description of the accident before the primary judge was as follows:
     

"Q. Just before the accident do you recall which lane you were driving in?

A. Yes.

Q. Which lane was that?

A. I was in the kerb side lane.

Q. At the section of Stacey Street where you were driving just before the accident, how many lanes are there travelling in a southerly direction?

A. Three lanes.

Q. Can you remember what the traffic conditions were like? How many cars were there in the area?

A. There was traffic, enough that between me and the incident that occurred, there was a car occupying each lane.

Q. What did you see?

A. I saw a car flash from the far right hand lane or the median lane to the middle lane, between traffic from the far right hand lane to the middle lane and also from the middle lane to the kerb side lane. So two flashes between the gaps in the traffic and then dust and debris come up." (emphasis added)

220. The appellant complains about what the primary judge said about Mr Collin's evidence, particularly (at [149]), however it is appropriate to set those remarks in context:
     

"147. Mr Collin's observations concerning the lane of travel of the Plaintiff's vehicle were also rather limited. His evidence in chief on this issue was based on an observation he made some 150 to 200 metres to the north of the incident scene, namely:

'Q. What did you see?

A. I saw a car flash from the far right hand lane or the median lane to the middle lane, between traffic from the far right hand lane to the middle lane and also from the middle lane to the kerbside lane. So two flashes between the gaps in the traffic and then dust and debris come up.'

148. The foregoing description permits at least two interpretations: either one vehicle appeared to 'flash' from the lane adjacent to the median strip into the middle lane and then appeared to 'flash' from that middle lane into the kerbside lane or alternatively, the possibility that there were two separate vehicles involved in two separate lane changing manoeuvres as described. Again, relevantly, Mr Collin did not say he had the Plaintiff's vehicle under continuous observation over the time before seeing the 'two flashes' he described.

149. Although I accept that Mr Collin observed two separate flashes which represented the movement of motor vehicles I find that Mr Collin's quoted description to be an overly simplistic conflation of events and therefore unreliable as an accurate account of the events. I come to this view for three reasons. First, Mr Collin conceded the possibility there were two cars that changed lanes. Secondly, he did not see the Plaintiff's vehicle skid and spin out of control before hitting the pole when it is beyond dispute that this in fact occurred. Thirdly, Mr Collin did not agree it was dark at the time of the incident and he did not know whether or not he had his headlights on notwithstanding that the incident occurred more than an hour after sunset and in winter. In my view these matters cast doubt on the reliability of his observations."

221. Before considering the appellant's complaints it should be noted that in this section of his reasons, the primary judge was considering the issue of the "lane of travel and speed of the plaintiff's vehicle". In the next paragraph ([150]) his Honour concluded that the matters set out in [149], taken with Mr Collin's "non-observance of the Plaintiff's vehicle spin out of control necessarily impairs the reliability of his observations of the events in question" so that Mr Collin's evidence "does not assist me in determining the probable speed or lane of travel of the Plaintiff's vehicle in the very limited short time in which he had the opportunity of observing that vehicle."
     
222. The appellant complains about each reasons set out in [149] for his Honour concluding Mr Collin's evidence was unreliable as an accurate account of the events.
     

(i) The possibility of two cars

223. The concession to which his Honour referred (at [149]) was apparently based on the following cross-examination of Mr Collin:
     

"Q. In any event, there were a number of cars and I am not going to speculate, if you can't be sure, between you and where this accident happened. You could have been 100 metres away from it with an intervening cars in each lane between you and where this thing happened. The thing that sticks in your mind is that flash, flash. Is that right?

A. The flash, flash, the debris coming up and sort of sickening feeling that there had been an accident.

Q. You see - I am not being critical of you but you're surmising that the vehicle must have come from the outside lane because you saw a flash-flash. Is that fair to say?

A. No, I actually saw a gap between the outside lane - our right-hand side lane and the middle lane. The car moved between that - through that gap and I also saw it move through the gap between the middle lane and the kerbside lane or gutter side lane.

HIS HONOUR

Q. What was the distance between your point of observation and those vehicle movements?

A. This is what I think was around about 100 metres.

CRANITCH

Q. And so what you saw was a vehicle which appeared to move across three lanes, is that right?

A. Yes.

Q. But you couldn't tell the colour of the vehicle, could you?

A. No.

Q. All you saw was what you thought was a vehicle going flash, flash into the intervening spaces between the lanes?

A. Well, it definitely was a vehicle.

Q. There could have been two vehicles that crossed lanes, couldn't there? In other words, there could have been a vehicle that swerved from the median lane across a vehicle in the middle lane, that's one flash, and then the vehicle in the middle lane being forced off to the left, that's another flash. That could have happened, couldn't it?

A. I think that possibly could have because I don't recall, you know, specifically seeing a particular colour vehicle or type of vehicle in these flashes, yeah." (emphasis added)

224. The appellant submitted that this concession could not be "negatively determinative" of the reliability of Mr Collin's account. I agree. This statement had to be weighed in the overall assessment of Mr Collin's evidence which, the appellant submitted, was to the general effect that he saw "one car moved rapidly from the median lane to the kerb at an acute angle." Mr Collin's preparedness to accept the "possibility" the cross-examiner suggested appears to have been that of a frank witness prepared to make concessions rather than one whose reliability was questionable.
     
225. Next, the appellant points out that having treated this concession as demonstrating the unreliability of Mr Collin's account (and therefore as one of the reasons for rejecting his evidence about the respondent's lane of travel and speed) his Honour (at [148], see also [60]) used the "two flashes" observation as supporting the respondent's case. As the appellant put it, his Honour gave no reason as to why Mr Collin, having been rejected as unreliable (at [149] - [150]), was "partially rehabilitated" to support Mr Jaouhar's evidence - and the respondent's case. Moreover, it contends it was not open to the primary judge to turn evidence of a "possibility" into evidence of the probability of the respondent's case.
     
226. The respondent was required to prove his case on the balance of probabilities: s 140, Evidence Act 1995 (NSW) - a provision which reflects the law set out in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1: see Palmer v Dolman [2005] NSWCA 361 (at [40]) per Ipp JA (Tobias and Basten JJA agreeing). In Bradshaw (at 5) the court explained that the civil standard of proof "is concerned with probabilities, not with possibilities". The evidence has to raise a more probable inference in favour of the case of the party bearing the legal burden of proof. If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise. The evidence may disclose a number of possibilities the weight of all of which enables the tribunal of fact to reach a conclusion in one party's favour: Palmer v Dolman (at [41]). I do not accept, accordingly, the appellant's submission that it was not open to the primary judge to use Mr Collin's concession as an element to be weighed in the balance of assessing all the circumstances to determine whether the respondent had discharged the burden of proof.
     
227. However the appellant's submission that the primary judge's approach to this evidence was inconsistent is more compelling. The primary judge referred to the same passage of evidence to demonstrate the unreliability of (and therefore reject) Mr Collin's evidence of the respondent's lane of travel and speed, but as probative of the respondent's case of the involvement of two vehicles. The appellant was entitled to expect his Honour to be consistent in his approach.
     
228. The respondent submitted that Mr Collin's evidence of the two flashes made no sense without there being two vehicles involved. Quite why that was so was not explained.
     

(ii) Failure to see the skid or loss of control

229. The second reason the primary judge gave for regarding Mr Collin's description as "overly simplistic...and therefore unreliable" was that he "did not see the Plaintiff's vehicle skid and spin out of control before hitting the pole when it is beyond dispute that this in fact occurred." The appellant contends this was not a fair basis for rejecting Mr Collin's evidence having regard to the fact that Mr Collin was never asked whether or not he saw the vehicle skid and/or spin out of control. The respondent did not contend to the contrary.
     

(iii) The darkness and the headlights

230. The final matters the primary judge found "cast doubt on the reliability of [Mr Collin's] observations" were as follows (at [149]):
     

"Mr Collin did not agree it was dark at the time of the incident and he did not know whether or not he had his headlights on notwithstanding that the incident occurred more than an hour after sunset and in winter." (emphasis added)

231. Mr Collin's evidence on both these matters is contained in the following excerpt from his cross-examination:
     

"Q. And it was dark, wasn't it? It was 6 o'clock at night?

A. It was late but it wasn't fully dark.

Q. Well, it was 6 o'clock at night.

A. I don't recall the time but it wasn't dark.

Q. And it was June?

A. Yes, it was June - well I've been told it was June and that it was cold.

Q. And you had your lights on?

A. I don't recall if I had lights on.

Q. You see, I suggest to you, sir, at 6 o'clock at night on the early part of June, it is in fact dark, isn't it?

A. At 6 o'clock it is, yes.

Q. Now if the accident happened at 6 o'clock may we assume that it was dark?

A. Well, I don't know the accident happened at 6 o'clock. I know that what I saw was not dark.

Q. It wasn't dark?

A. No.

Q. What, was it daylight still, was it?

A. It was late afternoon. It was, you know, dusk.

Q. Late afternoon? Are you sure you've got a good memory of all this? As Mr Watson said, you've only got to bring it back in your mind's eye, is that right.

A. Yes.

Q. So in your mind's eye it's late afternoon, it's on dusk, it's not dark.

A. Well, it is dusk but not dark.

Q. You didn't have your lights on I take it?

A. I don't know.

Q. You don't know?

A. No.

Q. This is an incident which is vivid to your memory, is it?

A. The incident is very vivid but the surroundings, no, I can't." (emphasis added)

232. The appellant submits that neither Mr Collin's failure to affirm the darkness beyond stating "[i]t was late but it wasn't fully dark", nor his inability to recall whether his headlights were illuminated, ought to substantially undermine his critical testimony as to what he saw.
     
233. The underlying premise of the primary judge's criticism of Mr Collin's description of the state of the light is his Honour's earlier finding that it was "dark" when the accident occurred. I have already explained why that finding is open to question. Mr Collin's inability to recall whether his headlights were on related, in my view, to a peripheral detail, lack of recollection of which is cogently explained by his last answer
     

C. Mr Jaouhar's evidence

234. The appellant submitted that the primary judge's treatment of its lay witnesses could be contrasted with his Honour's approach to Mr Jaouhar's evidence.
     
235. The latter's evidence was, of course, critical to the success of the respondent's case first, in identifying that there had been a second vehicle, secondly that it came into contact with the respondent's and thirdly, that the respondent was not travelling at an excessive speed.
     
236. The appellant submitted that there were reasons to doubt Mr Jaouhar's evidence on each issue which the primary judge had failed to take into consideration. To the extent that his Honour had dealt with inconsistencies in Mr Jaouhar's evidence, the appellant complained that unlike his Honour's treatment of Miss Cirino's and Mr Collins' evidence where he regarded it as inconsistent and therefore affecting their reliability, in contrast, Mr Jaouhar's memory and observational lapses were not considered adversely to affect his reliability.
     
237. Mr Jaouhar gave a statement to the police at the scene of the accident which I have set out at above (at [41]). He agreed at the trial that he had signed the statement because he felt it was accurate.
     
238. The appellant pointed out that Mr Jaouhar did not mention in that statement the other car changing lanes or that it had "nudged" the respondent's vehicle.
     
239. Mr Jaouhar agreed at trial that he had not told the police at the accident scene anything about a contact between the two cars and that this "more detailed" version of the accident emerged when he gave evidence at the Local Court in the respondent's defence of the criminal proceedings: cf primary judgment (at [50]). He explained the difference between the account he gave to the police at the accident scene and that he gave in the Local Court and at the trial on the basis that the accident had affected him and he was "really out of it".
     
240. The appellant also drew attention to the respondent's claim form dated 10 October 2000, which his Honour (at [472]) inferred was based on Mr Jaouhar's version of events, in which the other car was described as a "light" car. At the trial Mr Jaouhar said the vehicle was "a dark colour", "purpley - purpley colour, orange almond".
     
241. Furthermore the version of the accident given in that claim form was:
     

"I was travelling south along Stacey St in my vehicle ... in middle lane when an unidentified vehicle travelling in right lane cut across my vehicle into the left lane with [sic, without] warning to exit off the left lane to go to Canterbury Road causing me to take evasive action. As I tried to avoid a collision with the unidentified vehicle I lost control of my vehicle. I applied the handbrake which caused my vehicle to spin out of control and collide heavily into a power pole."

As is apparent, there was no mention of a collision with the other vehicle in this statement. Mr Jaouhar was not cross-examined about this, but the inconsistency between it and his evidence at the Local Court and at trial is self-evident. The primary judge set out this account (at [465]) when dealing with the plaintiff's credit - yet failed to remark upon the inconsistency between it and Mr Jaouhar's evidence in the Local Court and at trial. It was also set out in Mr Keramidas' report which, however, his Honour rejected.

242. At the trial Mr Jaouhar gave the following evidence:
     

"Q. After Khodr had moved into the middle lane --

A. Yes

Q. -did something happen?

A. Yeah, while we moved into lane 2, that's the middle lane, a car flew right past us in lane 1 next to the median strip.

Q. When you say flew right past you --

A. Yep.

Q. How far past?

A. How far or how fast?

Q. Well, I withdraw that. When you say flew --

A. Yep, he drove at high speed past us.

Q. Do you recall the vehicle now?

A. The description of the vehicle?

Q. Yes.

A. I'll say it was dark colour.

Q. Did you know the make?

A. It would be probably a little Swift or a Barina looking thing.

Q. When you say it was a dark colour --

A. Yep.

Q. - what colour?

A. Would it like purpley - purpley colour, orangey, almond.

Q. Were your lights on at that stage?

A. Yes.

Q. And you were sitting in the passenger seat?

A. Passenger side.

Q. And that dark coloured car that you described before you said that it flew past you, had you seen it before?

A. No.

Q. Which lane was that dark coloured car in?

A. Lane 1, that's the median strip.

Q. The vehicle in lane 1 what did it do then?

A. Where point of view it slowed down probably a - [sic, as in original]

Q. Approximately how far from the point of the accident did this occur?

A. How far from?

Q. Do you recall the --

A. I will recall now.

Q. Well you said that the vehicle slowed down. What did it do then?

A. It just - it crossed us.

Q. Before it crossed you did you notice anything?

A. No.

Q. Was there a blinker on?

A. Nothing.

Q. Was there any warning?

A. No, no warnings.

Q. How did you first note that it crossed in front of you?

A. When we continue our destination and - and the way how it happened is it just cut us - we were looking at it - we just - was crossing across you know.

Q. Apart from seeing anything did you feel anything?

A. A bit of a nudge.

Q. When you say a bit of a nudge, did you feel where it was - which part of the car was nudged?

A. On the driver's side.

Q. And after the nudge what happened?

A. Kaled applied the brakes and the - the handbrake went up and to me everything went out of control.

Q. Where was this other car when Khodr applied the brakes?

A. In front of us.

Q. Which lane had it come from, from your observation?

A. It's come from lane 1, that's next to the median strip. It's come across to our lane - number 2, in the middle, and it occurred from there.

Q. How close was it to the front of Khodr's car?

A. Without applying the brakes we would have run into them - could have been that close.

HIS HONOUR:

Q. Can you say that again please. Without applying the brakes --

A. Without applying the brakes we would have hit into the car in front."

243. The appellant submitted that the evidence as a whole contradicted Mr Jaouhar's version. First it relied on the inconsistency between Mr Jaouhar's statement to the police at the accident scene. It drew attention to Senior Constable Cassidy's evidence that he had looked at the Gemini and found no sign to suggest it had been in contact with another car and had looked "on the roadway where the skid marks were" and found no debris. Further, Mr Keramidas had said it was "not possible" that the accident was caused by "a bit of a nudge" - an opinion he based partly on the absence of evidence of contact with another vehicle in the photographs of the Gemini.
     
244. I do not understand the last submission to have amounted to a submission the Court should substitute a verdict in the appellant's favour. The respondent's case also depended on Mr Johnston's evidence which the primary judge variously accepted and/or rejected - in a similar pattern to his treatment of Mr Keramidas' evidence. The appellant did not embark upon a comparative analysis of that evidence as compared to Mr Keramidas' - which would be the least exercise it would have to undertake before the Court could reach a conclusion in the appellant's favour.
     
245. Secondly, the appellant points out that Mr Jaouhar's explanation of the inconsistency between his police statement and his later evidence that he was "really out of it" after the accident, did not adversely effect the reliability of his account, in contrast to his Honour's treatment of Miss Cirino's and Mr Collin's evidence. There is also force in this submission.
     
246. In my view the appellant was entitled to complain that when the judgment is viewed as a whole and analysed in the light of the underlying lay evidence, the primary judge's conclusion unduly favoured the respondent's case.
     
247. This can be seen from his Honour's conclusion to his analysis of the eyewitness evidence (at [180]):
     

"180. [I]n my view the end result is that although Mr Jaouhar's evidence of the presence and involvement of another vehicle was challenged, it has not been relevantly contradicted. As already analysed, the evidence of Miss Cirino and Mr Collin does not contradict the presence of another unidentified vehicle nor does their evidence contradict contact between vehicles. Miss Cirino heard the noise of other motors and Mr Collin saw two flashes which I find represented two separate vehicles. I find that these observations serve to support Mr Jaouhar's evidence."

248. In my view the primary judge's criticisms of the appellant's lay witnesses and selective use of their evidence to support the respondent's case in the absence of cross-examination or submissions and his inconsistent use of critical parts of Mr Collin and Miss Cirino's evidence to support the respondent's case demonstrate that, partly by reason of denial of procedural fairness, his preference for the respondent's case was not soundly based.
     

Expert witnesses

D. Mr Keramidas

249. The appellant is also, in my view, entitled to be aggrieved by the primary judge's treatment of Mr Keramidas' evidence. It will be recalled that his report was admitted without objection.
     

Rejection of Mr Keramidas' report

250. The primary judge set out (at [115]) Mr Keramidas' conclusions:
     

"1. It is virtually impossible for the scenario as outlined by Mr Jaouhar to have taken place, or to have caused the loss of control of the Plaintiff's Holden during this incident.

2. The estimated speed of the Holden at the start of its skidding was 62 to 67 km/h (assuming the braking was available only through the handbrake), or 78 to 83 km/h (assuming the foot brake was also activated and operational at the time). If one were to accept that there was additional braking prior to the commencement of the skidding, then the approach speed of the vehicle must necessarily have been higher than the above estimates and potentially much higher.

3. Having reviewed the report of Mr Johnston, there is nothing in that report which caused the author to alter his opinions regarding the incident circumstances."

His Honour described these conclusions (at [116]) as "speculative".

251. Mr Keramidas' conclusions were based on his analysis of police material including the Computerised Operational Policing System ("COPS") Event Entry, statements from the attending police, police photographs taken at the scene and police notebook extracts. In addition, he had regard to the respondent's personal injury claim form, Mr Jaouhar's statement to the police at the accident scene and Mr Jaouhar's evidence to the Local Court hearing which Mr Keramidas summarised in 16 points. He also had regard to Miss Cirino's statement to the police at the scene and her evidence at the Local Court. Finally, by way of additional background, Mr Keramidas had regard to medical reports relating to the respondent's injuries, the manufacturer's specifications for what he concluded were the most probable models for the respondent's vehicle, a Roads and Traffic Authority signals diagram relating to the subject intersection, and a surveyor's report about the incident location. He also undertook a site inspection. Mr Keramidas used that information to analyse the incident under three headings, the likely speed of the Holden, the likely vehicle trajectory and the involvement of an unidentified vehicle and the likely cause of loss of control.
     

D1. Failure to tender transcript of Mr Jaouhar's evidence in the Local Court

252. The primary judge rejected Mr Keramidas' conclusions insofar as he inferred it was based on Mr Jaouhar's evidence in the Local Court proceedings (at [121]) because he found his report failed to comply with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. This was because Mr Keramidas referred to a "16 point summary" of Mr Jaouhar's evidence the transcript of which was not tendered.
     
253. Mr Keramidas identified (Keramidas Report at 3), as one of three instructions he was given by the appellant's solicitors in preparing his report, "[w]hether the sequence of events provided by Mr Jaouhar is, as a matter of objective assessment, possible, and if possible, likely." Mr Keramidas noted he was provided with the transcript of the Local Court hearing (Keramidas Report at 4). He listed the following 16 points which it is apparent he extracted from that evidence (Keramidas Report at 12 - 13).
     

"Mr Jaouhar...provided evidence at the Local Court Hearing, indicating, among other things:

1. They were driving down Stacey Street and it was quite dark.

2. There was a great deal of traffic and the traffic was moving slowly.

3. He then indicated the following with respect to his observations:

'Well, as we were driving home on Stacey Street a little Swift, Barina, purpley bluey colour with black tinted windows was flying past, just flew past us, then it slowed back down. What he was trying to do, go onto, go to the far left side to ---'

4. Mr Jaouhar indicated that at the time the Plaintiff's vehicle was in the middle lane, having originally being travelling in what he described as the lane 'on the far left side'.

5. Mr Jaouhar indicated to the Prosecutor's questions that they were in the right-hand lane from the set of lights, and that they then moved to the left, being the middle lane, and that's when the incident occurred.

6. The vehicle did not indicate at all as it changed lanes, effectively cutting in front of them.

7. As the vehicle cut across it 'clipped' the side.

8. The vehicle was either a Swift or a Barina. The vehicle was also described as having black tinted windows.

9. When asked what made Mr Jaouhar believe that this vehicle may have clipped the Plaintiff's car, he indicated; 'When he went in front - the car just moved a bit but he slammed the brakes hard.' ... 'Like when he went in front of us, he went close. I felt a little push on the side and then he slammed hard, the brakes hard in front of us.'

10. Later Mr Jaouhar further indicated; 'He's clipped - he's hit - I'm sayin' I think he's hit the front and he was in front right behind - we were right behind him, so we've slammed the brakes hard.'

11. After contact, Mr Jaouhar indicated that the Plaintiff 'slammed the brakes and the hand brake.'

12. He also indicated that when the Plaintiff slammed the brakes on that 'nothing happened really then he used the hand brake', in effect indicating that the Plaintiff had applied both brakes.

13. Mr Jaouhar indicated that as a result of the foot brake being applied, the vehicle started to slide sideways so that it ended up side-on to the pole.

14. Mr Jaouhar also conceded that he did not see the witness pull the handbrake on.

15. He further indicated that it was his belief that had the Plaintiff not slammed the brakes on their vehicle would have collided with the vehicle in front.

16. After impacting with the pole, the vehicle was described as having carried on and hit a fence."

254. The primary judge said of this list (at [116]):
     

"[T]he basis for it is not found in the evidence in these proceedings and it therefore remains opaque to analysis. This is so because the summary prepared by Mr Keramidas cannot be evaluated for accuracy, emphasis or appropriateness. This position arises because the Defendant elected not to tender the primary source for that summary, namely, the evidence given by Mr Jaouhar in the Local Court proceedings." (emphasis added)

255. The appellant submits this criticism is both erroneous and productive of procedural unfairness.
     

(i) Procedural unfairness

256. The appellant submits that no objection was made by the respondent to Mr Keramidas' report or oral evidence, on Makita grounds or otherwise. No submission was put that any part of Mr Keramidas' evidence should be rejected. The appellant complains it was thus denied the opportunity to be heard on the Makita point, which was the substantial reason for the rejection of its expert.
     
257. The appellant contends that, had it been given the opportunity to be heard on the matters that caused his Honour to reject Mr Keramidas' report, it would have done the following. First, it would have drawn the primary judge's attention to authority for the proposition that it was appropriate for Mr Keramidas to list his assumptions. It referred to Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 (at 344 - 354) observing, ironically, that this was one of the authorities that was discussed and approved by Heydon JA in Makita (at [78]). Secondly, it would have tendered the transcript of Mr Jaouhar's Local Court testimony.
     
258. The respondent submitted somewhat faintly that UCPR 31.28 would have precluded the appellant from tendering any further material to support Mr Keramidas' opinion. It is unnecessary to refer to that rule in detail. In short it does not appear to me to relate to the circumstance where a trial judge forms the view (where there is no submission to this effect from a party) that the absence of primary material affects the validity of an expert opinion.
     
259. In my view the primary judge's failure to give the appellant notice of the adverse view he had formed about the absence of the Local Court transcript and the opportunity to remedy the problem he perceived that created, was a denial of procedural fairness. It was compounded when regard is had to the fact that, as will become apparent, nothing in the 16 point summary was controversial. The facts in the 16 point summary reflected common ground or the respondent's case as advanced at trial.
     

(ii) Erroneous

260. The primary judge said (at [117]) that the detail of Mr Keramidas' summary items 8, 9, 10 and 13 "did not accord" with Mr Jaouhar's oral evidence at trial - a statement the appellant observed which implied his Honour had undertaken a comparison of that evidence with the summary. However his Honour also said (at [120]) that "comparing [Mr Keramidas'] summary with the evidence of Mr Jaouhar would be a fruitless exercise because the basis of the summary remains opaque to analysis." The appellant complained that it was difficult to understand how his Honour could conclude an exercise upon which he had not embarked was "fruitless".
     
261. Further the appellant submitted that even without the tender of Mr Jaouhar's Local Court transcript, the evidence demonstrated the accuracy of Mr Keramidas' 16 point summary - so that it could not be said the basis of Mr Keramidas' opinion was "opaque to analysis".
     
262. An analysis of the 16 point summary is set out in the Schedule to these reasons. It compares Mr Jaouhar's evidence at trial and the primary judge's reasons (and includes reference to the parties' submissions about each point). The brevity of references to the respondent's submissions in the Schedule is explained by the fact that he did not seriously contend that there was any significant difference between the 16 points and his case at trial.
     
263. The primary judge said (at [117]) that "the detail of Mr Keramidas' summary items 8, 9, 10 and 13 did not accord with the evidence which Mr Jaouhar gave in these proceedings." I do not understand his Honour's general or particular criticism. If his Honour discerned a divergence between the facts Mr Keramidas relied upon and the evidence he ought to have inquired whether "even though the facts assumed may not correspond 'with complete precision' with the facts established, they [were] 'sufficiently like' the facts established 'to render the opinion of the expert of any value': Dixon v Whisprun Pty Ltd [2001] NSWCA 344 per Heydon JA (Beazley JA and Davies AJA concurring) (at [53]) referring to Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (at 509 - 510); upheld on appeal: Paric v John Holland Constructions Pty Ltd [1985] HCA 58; [1985] HCA 58; (1985) 59 ALJR 844 (at 846) and HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 (at [39]) per Gleeson CJ.
     
264. It is notable that the primary judge referred (at [120]) to Paric but nevertheless concluded (see [260]) that it would be "fruitless" to undertake the task it contemplates. It is difficult to understand how his Honour could have reached this conclusion. It is apparent from the Schedule that the 16 point summary substantially reflected Mr Jaouhar's evidence at trial and his Honour's findings. In my view his Honour erred in rejecting Mr Keramidas' opinion (at [120] - [121]) on the basis that the summary was "opaque to analysis".
     
265. The primary judge also criticised the appellant (at [117]) for failing to "explore or reconcile the detail of these differences by cross-examining Mr Jaouhar on the areas of variance." As is apparent, counsel for the respondent at trial did not suggest there were substantial (or any) variances which would have cast doubt on Mr Keramidas' summary. This was a proposition which occurred to the primary judge at some stage. The appellant was not given the opportunity to deal with it.
     

Rejection of Mr Keramidas' oral evidence

266. Notwithstanding the view he took of Mr Keramidas' report, the primary judge said (at [122] - [123]) that he had to consider and evaluate his oral evidence. The appellant complains about a number of criticisms his Honour made of Mr Keramidas' evidence in the following portion of his reasons. Despite his Honour's statement it appears to me that at least paras 124 - 127 referred to Mr Keramidas' report.
     

D2. Assumptions as to when braking commenced

267. The primary judge found (at [124]) that:
     

"For the purposes of estimating the speed of the Plaintiff's vehicle Mr Keramidas assumed, in my view unwarrantedly, that the Plaintiff's vehicle only commenced to brake at the commencement of the skid marks - and I interpolate - as distinct from when the brakes were applied." (emphasis added)

268. The appellant submitted that this passage reveals that the primary judge misunderstood Mr Keramidas' evidence. It submitted that to reject Mr Keramidas' evidence on the basis that he made only one assumption as to where the respondent's vehicle commenced to brake is unfair and inaccurate. It relied in this respect on the following passages from Mr Keramidas' report (at 24, assumptions emphasised) as indicating he performed his calculations of the respondent's pre-braking speed according to a range of different assumptions as to where and when braking commenced:
     

"The third segment of the vehicle's travel relates to the 23 metres of skid marks identified by Police. It appears from their sketch that there were only two tyre marks formed during this braking process, with those marks effectively crossing over during the vehicle's travel. This 'cross-over' characteristic along with the limit of the marks to two suggests that the rear wheels of the Holden were locked as a result of the application of the handbrake to the wheels on the rear axle.

If one were to assume that there was no foot brake activation during this motion (that is, only the handbrake was applied), then it would be expected the deceleration rate over the 23 metre distance would be in the order of 45% of the available deceleration rate on the vehicle... This would mean that the speed of the vehicle at the commencement of the skid marks would range between 62 and 67 km/h. If, in the alternative, a combination of the foot brake and handbrake were applied (and assuming the brakes were working correctly) then this speed range would increase to between 78 and 83 km/h.

Finally, if, as suggested by the passenger in the Plaintiff's vehicle, additional braking was applied prior to the commencement of the skid marks (through the application of the handbrake), then the vehicle's actual approach speed must have been higher than the above calculated speed range for both the handbrake only and combination braking scenarios respectively." (emphasis added)

269. These three alternative scenarios and related speed estimates were repeated in Mr Keramidas' conclusions (at 32).
     
270. The appellant also points out that the primary judge's criticism of Mr Keramidas (at [124]) was related to the assumption which most favoured the respondent's case.
     
271. That is because the lowest estimates made by Mr Keramidas of the respondent's speed at the commencement of the skidding were based on two constants: Mr Keramidas' earlier estimate (at 23) of the respondent's speed at impact with the pole, and the expected deceleration rate of the respondent's car. Thus, the further away from the site of the collision braking commenced, the greater the distance the car had to slow down before reaching impact speed, and so the faster the car must have been travelling initially.
     
272. The effect, however, of his Honour's failure to refer to Mr Keramidas's other assumptions meant that his Honour failed to appreciate that the thrust of his opinion was that on those assumptions the respondent commenced to brake somewhere before the skid marks commenced. On this scenario, the appellant submitted without contradiction, the respondent's vehicle was likely to have been travelling at a higher speed.
     

D3. Reliance on police sketch

273. The appellant submits the primary judge unfairly criticised Mr Keramidas's use of the police sketch of the skid marks in the following passages:
     

"126. For the purpose of his attempt at analysis of the forces and angles of travel that operated in the incident Mr Keramidas has created a complication in the analysis in that he appears to have invested Senior Constable Cassidy's rough and not to scale diagram of the skid marks with a degree of accuracy beyond that which was intended to be represented in that diagram. Whilst he acknowledged the not to scale character of the diagram, he nevertheless went on to draw inferences from the character and angles of the diagrammatically represented skid marks in a way that unwarrantedly assumed an accuracy of the diagram that was not open in the circumstances.

....

128. In his oral evidence Mr Keramidas sought to explain the opinion set out in his report concerning his first conclusion to the effect that it was virtually impossible for the events of the collision to have occurred as was claimed by Mr Jaouhar. He reiterated the view he expressed in his report but he did so in the following terms..." (emphasis added)

274. The primary judge then set out the impugned evidence (at [128]). In that excerpt set out below, Mr Keramidas explained why, in his opinion, one scenario apparently suggested by the respondent at trial to explain the appearance of only two skid marks in the police sketch - that the skid marks were caused by the driver's side front wheel and the driver's side rear wheel, not both rear wheels - was "virtually impossible":
     

"[KERAMIDAS] ...[I]n order for the vehicle to have the diagonal trajectory that it has towards the pole which is at about 20-odd degrees, 25 degrees from the normal travelling path, if only the driver's side front and rear - front and rear wheels had brakes operating the vehicle would essentially need to have been travelling at 90 degrees to the roadway for the brake application to then pull it to the right, in other words back towards the direction of travel of the roadway. So that makes it - again I hesitate to use the word, but impossible for that to happen.

...

So if you follow it needs to - it's going to drag the vehicle to the right so if we were to look at the police officer's diagram, in order for the vehicle to be dragged to the right it's going to be driving across the roadway in order to end up at an angle towards the - towards the pole. So there are two very, very improbable scenarios that have to link together, both be present, to create the angle of the tire marks and the impact with the pole where it happened."

275. After reciting this evidence from Mr Keramidas, the primary judge concluded (at [129]):
     

"In my view the foregoing evidence of Mr Keramidas confirms that he has placed undue reliance on an assumed accuracy of Senior Constable Cassidy's diagram of the skid marks."

276. The appellant submits that the proposition that Mr Keramidas placed too much weight on the accuracy of the police sketch, or that his analysis of the speed or angle of travel was unreliable because of any lack of precision of the sketch, was never put to Mr Keramidas.
     
277. In fact, the appellant points out the respondent cross-examined Mr Keramidas as follows, on the basis that the sketch was substantially accurate:
     

"Q. I want you to assume that the constable has given evidence that the diagram, which is the diagram of the skid marks, was drawn as accurately as he could on the night.

A. Yes."

278. As the appellant observes, the assumption the respondent asked Mr Keramidas to make reflected the evidence of Senior Constable Cassidy set out above under the heading "Police Sketch".
     
279. Finally, the appellant submits (and the respondent does not contest) that the respondent did not make any submission at trial to the effect that Mr Keramidas placed undue reliance on the sketch
     
280. In summary the appellant submits that the primary judge's criticism of Mr Keramidas' use of the police sketch was inconsistent with the evidence of how the sketch was prepared and how the respondent relied on it to cross-examine Mr Keramidas, all of which compounded the procedural injustice of criticising Mr Keramidas' opinions on this basis.
     

D4. Unexplained assumption regarding use of photographs

281. The primary judge also rejected (at [132]) Mr Keramidas' evidence as to whether the photographs of the respondent's car taken by the police supported the respondent's case on the basis that Mr Keramidas had relied upon unexplained assumptions:
     

"131 The evidence of Mr Keramidas also relies upon an unexplained assumption arising from an interpretation of the photographic evidence of vehicular damage concerning the likely effect of contact between the Plaintiff's vehicle and the unidentified vehicle referred to by Mr Jaouhar. The unexplained assumption embedded within the question asked was 'what could be gleaned from the photographs of the Gemini'. It is apparent from the following thread of evidence in the cited questions and answers, that neither Mr Keramidas nor the questioner sought to clarify what could be 'gleaned' from the photographs:

'Q. Or "a bit of a nudge" and I just want to ask you, Mr Keramidas, is it possible that a nudge or contact on the right side of the Gemini could have caused what is evident from Constable Cassidy's diagram on such evidence as can be gleaned from the photographs of the Gemini after the accident?

A. In combination with all of those factors, no, it's not possible. (Emphasis added)

Q. Why?

A. The first and perhaps most important reason is that in order for the Gemini's motion to be deflected or be pushed off line to any extent requires that the object striking it overcomes the vehicle's inertia. Now, its inertia is going to be a combination of its mass and its speed. As against that there is a reducing element of traction on the tires the faster the speed occurs. The force required to actually deflect the - the Gemini to the left by 20, 25 degrees would be something in the order of about one-tenth its weight so it's not a lot, travelling at - this is assuming that it's travelling at speed - it would be about 200 kilos, 200 and - something like that. That amount of force can certainly be applied by a vehicle to it; however, the position where it's applied is of some significance in terms of the closer it is to the centre of mass of the vehicle, the harder it is to push because you're not creating a lever effect.

If you were to hit it right at the very front or right at the very back then the lever effect off the centre of mass allows for a deflection to occur much easier. If it is on the - on the driver's side of the vehicle at about the driver's door then effectively what you need to do is - you're not - you're not redirecting the vehicle, you have to actually push it sideways which requires far more significant force.

The two elements that are going to be in contact between the passenger's side of the striking vehicle and the driver's side of the struck vehicle is essentially panel work, be it doors or front or rear guard or anything of that description. As the two come together applying essentially a hundred kilograms of force in one direction and obviously that is rebounding on the other, those panels will not sustain that amount of contact without showing significant creasing. The outer skin of a door is not a significant structural component. So you should see significant damage to both the struck vehicle and the striking vehicle.

There is no evidence that I see in the police photographs of anything like that so yes, it is possible to cause a deflection, there is no physical evidence that such a significant contact has occurred and if it has occurred in the vicinity of the driver's door then I can rule it out as a possibility.'" (emphasis in original)

282. The passage of Mr Keramidas' evidence his Honour extracted (and rejected) was given during his evidence-in-chief, when as is apparent, counsel for the appellant asked him to address the core hypothesis of the respondent's case. The appellant submits the primary judge's criticism that Mr Keramidas made no attempt to clarify what could be "gleaned" from the photographs is unfair. The respondent did not cross-examine Mr Keramidas on this basis or put any submission to this effect.
     
283. The appellant also submits his Honour's criticism is inaccurate as Mr Keramidas set out in his report (at 9) the assumptions he made based on the photographs:
     

"The assistance which the photographs did provide was as follows:

1. The vehicle at rest appears to have experienced significant intrusion in the area of the vehicle's 'A' pillar, at least to the extent of 300 to 400 mm.

2. The vehicle's bonnet has been displaced and is sitting across the vehicle facing towards the off-side.

3. The driver's door has 'sprung' and is distorted both longitudinally and vertically.

4. The forward section of the vehicle, including the forward section of the passenger cell, has become separated (split) from the rear of the vehicle in the vicinity of the 'B' pillar, with the rear of the vehicle apparently sitting at an angle relative to the front.

5. It also appears that certain tyre marks may have been attempted to be captured in two of the photographs, however due to the image quality the actual marks are not discernible."

284. I would add to these references, the fact that elsewhere in his report, Mr Keramidas opined that for the version of events to which Mr Jaouhar deposed at the Local Court to have occurred, the respondent's vehicle would have to have exhibited "significant contact damage sufficient to cause the vehicle to be 'pushed' to the left." He concluded from his examination of the photographs that there was no evidence of such contact on the respondent's vehicle. He was not directly challenged on this evidence in cross-examination, although he did accept that "to some extent", the position of the bumper bar after the accident, and its collision with the street pole, may have eliminated "any evidence of such contact".
     
285. In my view these references make it apparent that the primary judge's criticism of Mr Keramidas' reliance on the photographs was unwarranted. Mr Keramidas' report sought to explain what the photographs did reveal, as well as why what he observed was inconsistent with the respondent's case. It was necessary for the primary judge to evaluate Mr Keramidas' opinion in the light of that evidence. Clearly, one factor relevant to his evaluation of that evidence was that, save to the extent to which I have referred, the respondent's counsel did not challenge his evidence concerning the photographs.
     

D5. Failure to consider a range of possible "mechanisms"

286. Having criticised Mr Keramidas (at [131]) his Honour continued (at [132]):
     

"It seems to me that an obvious problem emerges from the foregoing analysis by Mr Keramidas in that unlike Mr Johnston, he has not factored into his discussion a consideration of an array or range of possible mechanisms, including the possibility of a sudden and hard swerving or overcorrection manoeuvre of the Plaintiff's vehicle to the left intended to try and avoid a more serious collision with the unidentified vehicle. He ultimately acknowledged the possible relevance of such a scenario..."

287. The appellant submits this passage is neither fair nor accurate and points out that the respondent made no submission to like effect. The appellant also points out that when regard is had to Mr Keramidas' evidence, it is apparent that he considered a range of scenarios in relation to vehicle speed, trajectory and loss of control. The alternate scenarios Mr Keramidas addressed himself to as regards speed (Keramidas' Report at 24) are set out above (at [268]).
     
288. Insofar as "trajectory" is concerned, Mr Keramidas' report dealt with three different scenarios (at 24):
     

"The movement of the vehicle towards the south-east and its apparent rotation in a clockwise direction during the skidding process indicates that the vehicle's pre-skidding trajectory was also towards the south-east. There are a number of possibilities which could explain a pre-skidding trajectory of this type, including:

1. The vehicle travelling in a tangent to the right-hand bend.

2. The vehicle having been impacted on the right-hand side in order to redirect its motion to the south-east.

3. The vehicle being in the process of completing a lane change manoeuvre at the point in time when brakes were applied."

289. Each of these possibilities was then addressed (at 24 - 25).
     
290. Mr Keramidas' report deals with a number of possible causes of the respondent's loss of control over his vehicle (at 25 - 26). He assessed Mr Jaouhar's explanation for that loss of control (at 24), as well as the possibility the respondent's application of the handbrake was the causative event (at 25). Mr Keramidas also considered the scenarios Mr Johnston put forward (at 27 - 32).
     
291. The appellant gave three references to Mr Keramidas' report to support the proposition that Mr Keramidas addressed the example given by his Honour (at [132]), (repeated at [133]) of a mechanism Mr Keramidas failed to consider, namely "a sudden and hard swerving or overcorrection manoeuvre of the Plaintiff's vehicle to the left intended to try and avoid a more serious collision".
     
292. The first (at 25) is to a paragraph, under the heading "The Likely Vehicle Trajectory", dealing with:
     

"... [a] scenario involv[ing] the redirection of the vehicle through steering in the form of a lane change manoeuvre, with significant application of brakes prior to the vehicle completing that manoeuvre and continuing a right steer condition to follow the bend [of Stacey Street]."

293. During oral submissions, Mr Watson submitted Mr Keramidas also dealt with the overcorrection/reactive swerve thesis when dealing with a "...scenario involv[ing] contact on the off-side of the Holden in order to produce a redirection of the vehicle to the south-east."
     
294. The second reference is to a section in Mr Keramidas's report headed "Involvement Of An Unidentified Vehicle And Likely Cause Of Loss Of Control" (at 25). In this section Mr Keramidas deals with the version of events provided by Mr Jaouhar at the Local Court hearing which, according to Mr Keramidas' summary (at 12 - 13), did not include evidence to the effect that the respondent swerved suddenly or forcefully.
     
295. The third reference is to Mr Keramidas's discussion of Mr Johnston's 2007 report; in particular, the segment of Mr Johnston's report entitled "Initiation of Loss of Control" (at par 5.20-5.30. Mr Keramidas makes the following comment (at 30):
     

"Mr Johnston does however consider that a combination of a contact and evasive steer or corrective steer could have occurred as described by the Plaintiff's passenger. The present author disagrees entirely with this proposition for the reasons outlined earlier".

296. Mr Keramidas then reiterated his reasons for rejecting the proposition that there was contact between the respondent's car and another vehicle.
     
297. In my view the appellant's complaints about the primary judge's criticism of Mr Keramidas as having failed to consider a range of possible mechanisms is well founded.
     

D6. Failure to consider evidence supportive of appellant's case

298. Finally, the appellant contended that the primary judge failed to mention two key parts of Mr Keramidas's evidence. First, that the trajectory of the respondent's vehicle meant he had to have been travelling in the median lane prior to the accident, and secondly, that if an unidentified vehicle did nudge the respondent's car, that collision would have caused the unidentified car to spin out of control as well as the respondent's vehicle.
     

(i) Lane of travel

299. Mr Keramidas' report stated:
     

"[I]t is evident that the trajectory of the [plaintiff's] vehicle was such that it was travelling from Lane 3 across to Lane 2 when braking was applied, thereby eliminating the prospect of a vehicle overtaking on the right side."

300. This evidence was confirmed in Mr Keramidas' evidence in chief:
     

"Q. ... There has been evidence in this case which suggests that the Gemini at the time that control was lost was travelling in the middle of the three lanes along Stacey Street. Do you have a view about that?

A. I think as I've indicated in my report, the position of the tyre marks which I've assumed to be in about the centre of that centre lane is such that the vehicle can't have originally been travelling in that lane or within that position. The reason being that - you could certainly, if you were to - have been travelling in the centre lane and heavily applied the handbrake, you would certainly be in a position to leave marks from that point. However, that spinning motion ... would basically take you in a direct line of path towards the lights. Once the wheels are locked, then - those rear wheels are locked, you're not going to be able to create a redirection on the vehicle. So it's got to already be effectively heading towards the left-hand side of the roadway when those wheels are locked and it starts spinning.

...

Q. I want to add to your considerations a further factual assumption. I wish you to assume that...Constable Cassidy...looked at his diagram and he told us that he attempted accurately to portray where the skid mark commenced and when he was asked about how close the skid marks commenced relative to the painted lane divider between lane 3 or the median strip lane and the lane 2, he said that those marks commenced close to that point and when pressed he gave an estimate of one metre. Does that help you at all?

A. One metre?

Q. From the painted lane divider between lane 3 and lane 2, lane 3 being the one adjacent to the median strip.

A. Yes. It certainly strengthens the hypothesis that I've put forward. In order for those tyre marks to start, then effectively two-thirds of the way through the centre line, taking the kerbside as our reference, in order for that to occur and the vehicle to have this trajectory off to the left, then it indicates that the vehicle has started from lane 3. There has been a steering manoeuvre put in place - I can't tell you whether there's braking or not at that point - and then there has been braking including the full application of the handbrake to induce rotation.

HIS HONOUR

Q. Is that last answer of yours dependent on the speed of reaction time for applying the brakes?

A. It actually - your Honour, not in terms of a reaction time for applying the brakes. What it indicates is that the brake application has occurred, at least in terms of the handbrake, a small fraction of a second after the steering input. If the steering input had been allowed to operate for a significant period of time, then effectively the commencement of the tyre marks would be further away from this lane separation marker and the attitude of the vehicle would be more side-on to begin with ..." (emphasis added)

301. The appellant submits, without contradiction by the respondent, that the only cross-examination about this issue was as follows:
     

"Q. ...[Y]ou are aware of the fact that even on the very night in question Mr Jaouhar maintains they were in the middle lane of the road...

A. That's right, yes.

[Mr Keramidas was then asked to ignore the shorter tyre mark in the police sketch, which ends at the pole, as either inaccurate or unrelated to the accident.]

...

Q. ...[I]f you've only got one tyre making that [longer] skid mark there are a number of other factors then that come into play, for example, the car could have been in the middle lane and bumped by a passing car - assume it, however, to have been bumped near the front wheel arch. That could have happened to cause that trajectory, could it not?

A. The trajectory - yeah, you could certainly cause a deflection providing the bump was severe enough, yes, you could certainly cause that angle of trajectory. I certainly would have expected to see something in terms of a tyre mark during the deflection but not necessarily after it then proceeds from the deflection. So that initial hit I'd expect-

Q. The initial hit might deflect the car and the driver might then apply the service brake, find it's not working properly and then pull on the handbrake which wasn't adjusted, well the rear drum was not sufficiently adjusted to allow for it, and generate a skid in that direction from the centre lane through to where it appears near the vehicle at rest in the diagram.

A. The trajectory could certainly - you could generate that. I don't believe there's the damage on the vehicle but you can generate that trajectory. Subsequent to that where the service brake is applied, or the handbrake is applied, something has occurred to cause that rear offside to - to lock.

Q. But I'm more concentrating on the position of the vehicle at the onset of all of this. It's entirely consistent with the vehicle being in the middle lane and that scenario occurring, isn't it?

A. It could be providing the deflection was to about 20 degrees. That has to be a decent hit.

Q. Or alternatively in addition to the deflection the driver turning the wheel to avoid contact with the vehicle crossing in front of him.

A. Look, steering action is what I think has happened. Whether that's to avoid something I can't say.

Q. But whatever the initiating cause of the deflection, being a nudge where I suggest that it might have occurred, a sudden turn to the left and then the application of the handbrake incorrectly operating only on one drum because the drum is not adjusted properly, that could have occurred from the vehicle being in the middle lane.

A. If it was - if it was a nudge that caused the deflection I agree with you. If it's a steering action the vehicle will need time and space to go from straight ahead to left and it can't do that instantaneously. It would need to have been hit. If it's a steering action of an avoidance manoeuvre then it's effectively going to follow a curved path until that wheel locks. So in my opinion it can't have happened from within the centre lane. It has to be within the right lane, within lane 3.

...

HIS HONOUR

Q. ...[H]ow is that affected if one assumes that the deflection was caused by a combination of steering response and nudge together?

A. Technically, your Honour, it would depend on how much...the nudge contributed and how much the steering contributed. The nudge would be virtually instantaneous. It would be some small fraction of a second. The steering response would take longer.

Q. There could be another possibility. There could be an apprehension that the nudge was about to occur and then a steering response to try to avoid it.

A. Correct. In that situation then we're talking about lane 3 because anything that will require the vehicle to turn of its own accord to achieve that angle is going to require more than a metre or so of - of motion assuming that this tyre skid mark commences about a metre from the lane separation. So in that situation it would need to be nudged to position the vehicle in lane 2 ... [I]f it's a predominantly steering based response [it] would need to have been from lane 3 in order to get to 20 degrees unless it was travelling very slowly...at 20, 30 kilometres an hour you could certainly generate a 20 degree motion over one metre of lateral distance as you're moving the car." (emphasis added)

302. The appellant submitted ultimately that he did not understand this cross-examination to have directly challenged or explained that the skid marks did not mean that the car could not have been in lane number two. The respondent did not suggest otherwise.
     
303. It is not entirely apparent that the primary judge failed to refer to this evidence, at least insofar as Mr Keramidas' last answer to the cross-examiner in the passage extracted (at [301]) is concerned. It appears to be reflected in his Honour's statement (at [136]) that this evidence was contrary to Mr Johnston's. However his Honour criticised (at [136]) Mr Keramidas' view because "[o]mitted from his analysis was a discussion [of] a combination of an evasive steer, possibly in anticipation of contact with the unidentified vehicle, including the potential forces involved in such an analysis." In fact such a scenario was put to Mr Keramidas by the cross-examiner and dealt with by him. As earlier pointed out (at [295]), Mr Keramidas also referred to, and rejected, Mr Johnston's "evasive steer" hypothesis.
     

(ii) Spin out of unidentified vehicle

304. The appellant also drew attention to the following passage of Mr Keramidas' evidence-in-chief which he said was unchallenged yet was not addressed by the primary judge:
     

"Q. Mr Keramidas, what would happen to the...vehicle which struck the Gemini?

A. Now if the - if the two vehicles hit each other flush then effectively they have the potential to engage and so they should be full length scraping contact. If there's a slight angle variation - say, if the striking vehicle's coming into the position of the - of the Gemini, then essentially what would happen is there would be retardation or an interaction between the front passenger side of the striking vehicle and the driver's side of the struck vehicle, which - if it's enough to deflect the Gemini, it would cause a rotation on the striking vehicle. So it would spin out effectively."

305. However, the respondent submitted that the primary judge put paid to this theory when, after Mr Keramidas gave this evidence, his Honour asked him whether the other vehicle could have gone straight ahead if the driver had undertaken "a steering response" to which Mr Keramidas replied:
     

"If he caught it quickly enough, potentially yes."

Mr Keramidas: conclusion

306. There is no doubt Mr Keramidas' evidence about the trajectory of the respondent's vehicle and the probable effect of any collision on the unidentified vehicle were significant to the appellant's case. The primary judge dealt with neither.
     
307. Both aspects of Mr Keramidas' evidence were specifically drawn to the primary judge's attention in the appellant's oral and written submissions and were not criticised by the respondent. In so saying I do not suggest his Honour was obliged to accept Mr Keramidas' evidence in this respect. The parties were clearly at issue as to which expert's opinion was to be preferred. His Honour was obliged to subject the evidence of both expert witnesses to rational analysis: Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127. That included assessing matters clearly critical to each party's cases. His Honour's failure to consider these two important matters of Mr Keramidas' evidence constituted, in my view, an error in the fact-finding process.
     
308. Each piece of evidence could have had a material effect on the outcome as each, if accepted, was probative of the appellant's case. The primary judge's failure to consider them supports the appellant's argument that there has been a substantial miscarriage of justice.
     
309. The primary judge's analysis of Mr Keramidas' written and oral evidence led him to conclude that:
     

"138. Having analysed both the report of Mr Keramidas and his oral evidence I conclude that his analysis is in large part conjectural and is necessarily reliant upon his summary of material that is not in evidence in the proceedings. In my view a significant part of it remains opaque to analysis and it therefore lacks probative value. Further, in my view Mr Keramidas has not sufficiently exposed his reasoning process to enable a proper evaluation of the opinions he has expressed concerning his analysis of the events of the collision. I have therefore come to the view that I cannot safely rely upon the opinions that Mr Keramidas has expressed both in his report and in his evidence, particularly his estimations of the speed and lane of travel of the Plaintiff's vehicle in the lead-up to the collision in this case.

Conclusions concerning the utility of the expert crash analysis evidence

139. Having had the advantage of hearing the factual evidence of the witnesses Mr Jaouhar, Mr Collin and Miss Cirino I believe it is possible to achieve a resolution of the conflicting factual evidence which was based on the perceptions and observations of these factual witnesses without the need to invoke and rely upon the speculative conclusions of the crash analysis experts.

140. I am reinforced in this view by the respective acknowledgments made by both Mr Keramidas and Mr Johnston to the effect that the discipline of crash reconstruction is an imperfect process with inherent margins of error. In my view the analysis of the expert opinion evidence in this case well demonstrates this to be so. When these concessions are viewed against the backdrop of the facts of this case, I find that in this case the expert crash analysis and reconstruction opinions are of extremely limited probative value and are therefore of doubtful guidance in resolving the liability issues to be decided."

310. In my view the foregoing analysis makes it apparent that his Honour rejected Mr Keramidas' evidence in circumstances where the respondent had not raised the criticisms his Honour identified whether in cross-examination or in submissions and without giving the appellant the opportunity to deal with his criticisms, almost all of which were without foundation. This was a denial of procedural fairness and a significant flaw in the primary judge's fact-finding.
     
311. In addition, his Honour's failure fully to consider Mr Keramidas' evidence, in my view, amounted to error in fact-finding.
     

CONCLUSION

312. The appellant has made good its complaint that in critical areas the primary judge reached conclusions adverse to its case in circumstances which amount to a denial of procedural fairness. The primary judge determined the case substantially on points not raised by the respondent and not raised by his Honour during the course of the trial.
     
313. As will be apparent, not all of the matters that the primary judge found adversely to the appellant were a surprise to it. The respondent had, for example, submitted that Miss Cirino's evidence was contradictory and should not be accepted. However, in a number of areas of significance the primary judge's fact-finding was unsound. For example, when properly analysed it is apparent that the criticisms of Miss Cirino's evidence which led to his Honour rejecting her evidence as unreliable were not well based. Similarly the proposition that Mr Collin's two flash evidence demonstrated there were two vehicles was raised in the course of submissions. In response the appellant invited his Honour to assess it in the light of Mr Collin's evidence as a whole, as well as that of Miss Cirino and Mr Keramidas. His Honour's rejection of all but that piece of Mr Collin's evidence as unreliable was also for the reasons I have given, flawed. Indeed, it is notable that the primary judge assessed the two lay witness's evidence in isolation, without considering whether, taken as a whole, their evidence of what they saw/heard supported the appellant's case.
     
314. The primary judge's approach deprived the appellant of a fair trial and his fact-finding miscarried. The appellant had an arguable case based on its lay and expert evidence that the respondent's version of events should not be accepted. The primary judge's approach to analysing that case and errors in doing so deprived it of the possibility of a successful outcome amounting to a substantial miscarriage of justice.
     
315. The notice of appeal sought either a verdict or a new trial. It is not, in my view, open to this Court to enter a verdict in the appellant's favour. It has not seen the witnesses. The respondent's case at trial, particularly insofar as Miss Cirino was concerned, depended on assertions as to the contradictory nature of her evidence. In this Court he asserted his Honour was entitled to reject her evidence for these reasons and because she was "adversarial" and "defensive". Whether or not she was, and assuming those characteristics if perceived were not a justifiable human reaction to hostile questioning rather than redounding on her credibility, cannot be determined by this Court. There must be a new trial.
     
316. In such circumstances I do not think it is necessary to consider the appellant's other complaints, applying in this respect what has been referred to as the "principle of parsimony": Rebenta Pty Ltd v Wise [2009] NSWCA 212 (at [9] - [12]) per Basten JA (Ipp JA and Sackville AJA agreeing); Shimokawa (at [195] - [196]) per Giles JA (Beazley and Ipp JJA agreeing). Moreover, it would not be appropriate to express opinions about issues which as the outline of the parties' submissions on these issues I have outlined (at [113] - [116]) makes clear would turn on the view of the evidence taken by the next trial judge.
     
317. The only matter about which I would make comment is the appellant's complaint about the primary judge's use of the figure of $35 as an hourly rate for future attendant care services. The respondent's counsel had, in my view, abandoned that figure and accepted the appellant's submission that any such damages should be awarded at $22 per hour. To use the higher figure in these circumstances was another denial of procedural fairness: Seltsam (at [77] - [79]).
     

ORDERS

318. In the light of the fact that there must be a new trial the costs judgment must be set aside and the costs of the first trial must, as is the practice, abide the outcome of the second.
     
319. I propose the following orders -
     

1. Appeal allowed.

2. Set aside the verdict and judgment for the respondent of $1,333,398 and the order that the appellant pay the respondent's costs.

3. Remit the proceedings to the District Court for a new trial on all issues.

4. Costs of the first trial to be at the disposal of the judge conducting the new trial.

5. Respondent to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

Schedule

Sixteen point summary schedule

	Keramidas Report	Appellant’s submissions (unless otherwise indicated)	Evidence before primary judge	Findings of primary judge
1	They were driving down Stacey Street and it was quite dark.	Common ground		“There is no dispute that in the lead up to the collision the Plaintiff was driving... in a southerly direction in Stacey Street” (at [4]); and “it was already completely dark” at [30].
2	There was a great deal of traffic and the traffic was moving slowly.	As per the evidence given by Mr Jaouhar below.	“Q. On the evening of the accident how would you describe the traffic around you? A. I didn’t look around me I just – to me the traffic was – was moving – flowing through.” [Black 155I]	[While the primary judge refers to “prevailing traffic conditions” (at [173], [195]), his Honour does not make an explicit finding as to what those conditions were.]
3	He then indicated the following with respect to his observations: ‘Well, as we were driving home on Stacey Street a little Swift, Barina, purpley bluey colour with black tinted windows was flying past, just flew past us, then it slowed back down. What he was trying to do, go onto, go to the far left side to –’	As per the evidence given by Mr Jaouhar below.	“Q. — did something happen? A. Yeah, while we moved into lane 2, that’s the middle lane, a car flew right past us in lane 1 next to the median strip. ... Q. ...When you say flew— A. Yep, he drove at high speed past us. Q. Do you recall the vehicle now? A. The description of the vehicle? Q. Yes. A. I’ll say it was a dark colour. Q. Did you know the make? A. It would be probably a little Swift or a Barina looking thing. Q. When you say it was a dark colour— A. Yep. Q. —what colour? A. Would it like – purpley colour, orangey, almond. ... Q. Which lane was the dark-colo75ured car in? A. Lane 1, that’s the median strip. Q. The vehicle in lane 1, what did it do then? A. Where point of view it slowed down probably a— ... Q. Well, you said the vehicle slowed down. What did it do then? A. It just – it crossed us.” [Black 155N-156N]	“I have found that [unidentified] vehicle had travelled from the Plaintiff’s right and from the lane adjacent to the median strip ... I find that the unidentified vehicle was being driven at an excessive speed” (at [188]).
4	Mr Jaouhar indicated that at the time the Plaintiff’s vehicle was in the middle lane, having originally being travelling in what he described as the lane ‘on the far left side’.	The only important part of this is the evidence the plaintiff was travelling in the middle lane, which was reproduced in Mr Jaouhar’s evidence below. [t/s 34.46]	“Q. Up until the time of the accident, which lane were you in? A. Lane 2. Q. Being the middle lane? A. That’s right.” [Black 155F]	“[T]he Plaintiff changed his lane of travel to continue driving south in the middle lane of the three southbound lanes in Stacey Street. I find that this lane change occurred well before the scene of the collision and about 15 seconds prior to the collision” (at [172])
5	Mr Jaouhar indicated to the Prosecutor’s questions that they were in the right-hand lane from the set of lights, and that they then moved to the left, being the middle lane, and that’s when the incident occurred.	As per the evidence given by Mr Jaouhar below. [t/s 34.47]	“Q. —did you continue in that lane closest to the median strip? A. Sorry, can you repeat that again, please. Q. As you went down Stacey Street— A. Yes. Q. —continued down, did you remain up until the time of the accident— A. Yep. Q. — in that lane? A. No. ... Q. [HIS HONOUR] Did you move before or after the set of lights? A. After it. ... Q. [JOBSON] And which lane did you move to? A. Moved to the middle lane. Q. Up until the time of the accident, which lane were you in? A. Lane 2.” [Black 154L-155F]	“I find that in the lead up to the incident the Plaintiff’s vehicle was being driven by him in the lane adjacent to the median strip until a point on Stacey Street just after a set of traffic lights situated about 300 metres to the north of the collision site when the Plaintiff changed his lane of travel to continue driving south in the middle lane of the three southbound lanes in Stacey Street. I find that this lane change occurred well before the scene of the collision and about 15 seconds prior to the collision” (at [172])
6	The vehicle did not indicate at all as it changed lanes, effectively cutting in front of them.	As per the evidence given by Mr Jaouhar below. [t/s 34.47]	“Q. Before it crossed you did you notice anything? A. No. Q. Was there a blinker on? A. Nothing.” [Black 156O]	“[T]he unidentified vehicle appeared on the Plaintiff’s right and then in front of the path of travel of the Plaintiff’s vehicle suddenly and without prior indication or warning” (at [186]).
7	As the vehicle cut across it ‘clipped’ the side.	Other than the use of the word “clipped” instead of “nudged”, this evidence is consistent with that given below. [t/s 34.47]	“Q. Apart from seeing anything, did you feel anything? A. A bit of a nudge.” [ Black 156U]	“[In] the events leading to the collision there was contact between the driver’s side of the Plaintiff’s vehicle and an unidentified vehicle” (at [182])
8	The vehicle was either a Swift or a Barina. The vehicle was also described as having black tinted windows.	The evidence as to make is consistent with that given below; [t/s 34.48] the window tinting does not matter. [t/s34.44]	“Q. Did you know the make? A. It would be probably a little Swift or a Barina looking thing.”[Black 155V]	[The primary judge did not make any findings as to the characteristics of the unidentified vehicle.]
9	When asked what made Mr Jaouhar believe that this vehicle may have clipped the Plaintiff’s car, he indicated; ‘When he went in front – the car just moved a bit but he slammed the brakes hard.’ ... ‘Like when he went in front of us, he went close. I felt a little push on the side and then he slammed hard, the brakes hard in front of us.’	As per the evidence given by Mr Jaouhar below. [t/s 34.49]	“Q. Apart from seeing anything, did you feel anything? A. A bit of a nudge. Q. When you say a bit of a nudge, did you feel where it was – which part of the car was nudged? A. On the driver’s side. Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control. Q. Where was this other car when Khodr applied the brakes? A. In front of us.”[Black 156U-157D]	“[T]he unidentified vehicle appeared on the Plaintiff’s right and then in front of the path of travel of the Plaintiff’s vehicle suddenly and without prior indication or warning” (at [186]).
10	Later Mr Jaouhar further indicated; ‘He’s clipped – he’s hit – I’m sayin’ I think he’s hit the front and he was in front right behind – we were right behind him, so we’ve slammed the brakes hard.’	As per the evidence given by Mr Jaouhar below. [t/s 34.49] The respondent: Para 10 does not accord with Mr Jaouhar’s evidence of a “nudge” [t/s 58.11]	“Q. When you say a bit of a nudge, did you feel where it was – which part of the car was nudged? A. On the driver’s side. Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control. Q. Where was this other car when Khodr applied the brakes? A. In front of us.”[Black 156V-157D]	“[T]here was a minor impact with the driver’s side of the Plaintiff’s vehicle. I find that in his response, in rapid combination, the Plaintiff first applied the footbrake and then the handbrake” (at [186]).
11	After contact, Mr Jaouhar indicated that the Plaintiff ‘slammed the brakes and the hand brake.’	As per the evidence given by Mr Jaouhar below.[t/s 34.49]	“Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control.”[Black 157A]	“There was a minor impact with the driver’s side of the Plaintiff’s vehicle. I find that in his response, in rapid combination, the Plaintiff first applied the footbrake and then the handbrake” (at [186]).
12	He also indicated that when the Plaintiff slammed the brakes on that ‘nothing happened really then he used the hand brake’, in effect indicating that the Plaintiff had applied both brakes.	As per the evidence given by Mr Jaouhar below.[t/s 34.49]	“Q. And after the nudge what happened? A. Kaled applied the brakes and the – the handbrake went up and to me everything went out of control.” [Black 157A]	“He applied the footbrake which, on Mr Jaouhar’s observation, did not appear to slow the vehicle, most probably because an insufficient period of time had elapsed for the Plaintiff’s vehicle to appreciably slow down in juxtaposition with the lane changing manoeuvre that had occurred to his right and ahead of him. In my view what probably occurred next was that the Plaintiff then applied the handbrake hard as an emergency measure to slow his vehicle down as the vehicle which was by then in front had braked hard, as Mr Jaouhar described in his statement to the police.” (at [197]).
13	Mr Jaouhar indicated that as a result of the foot brake being applied, the vehicle started to slide sideways so that it ended up side on to the pole.	As per the evidence given by Mr Jaouhar below. [t/s 34.49]	“Q. After he put the brakes on? A. After he applied the brakes...(not transcribable) ... just lost control. Q. And what did the car do? What did it do? A. What on the accident? Q. Mm. A. I wouldn’t know? Q. Well did it stop? Did it continue or— A. No it didn’t. No it never stopped. Q. Well how did it go? Did it go – where did it go? A. What when the car’s cut us across, Khodr applied his brakes and the car lost control out of that. That’s all I remember. Q. Do you remember it striking the telegraph pole? A. No after I’ve come out of hospital and got myself straight up a bit. Q. You saw – when you got out of the car did you see where the car was? A. Yes. ... Q. And did you observe that it had struck a pole? A. At that time I didn’t know that.” [Black 159U-160J]	“...the Plaintiff first heavily applied his footbrake followed by a strong application of the hand brake, probably whilst also swerving to the left ...in the course of this manoeuvre the Plaintiff’s vehicle skidded and spun out of control...” (at [15] – [16]) “The rear wheels on the Plaintiff’s vehicle locked which caused the Plaintiff’s vehicle to spin anticlockwise in a trajectory to the left ... the vehicle skidded ... this skidding continued until the Plaintiff’s vehicle collided with the power pole adjacent to the kerbside lane” (at [187]).
14	Mr Jaouhar also conceded that he did not see the witness pull the handbrake.	Does not matter.
15	He further indicated that it was his belief that had the Plaintiff not slammed the brakes on their vehicle would have collided with the vehicle in front.	As per the evidence given by Mr Jaouhar below. [t/s 34.50]	“Q. How close was it to the front of Khodr’s car? A. Without applying the brakes we would have run into them – could have been that close.”[Black 157G]	“This situation created the risk that the Plaintiff’s vehicle would collide with the rear of that unidentified vehicle if evasive action was not taken by the Plaintiff.” (at [191])
16	After impacting with the pole, the vehicle was described as having carried on and hit a fence.	Common ground. [t/s 35.5]		“There is no dispute that...his vehicle skidded to the left across the south bound lanes of the roadway to his left and into collision with a kerbside power pole on the south-eastern side of the roadway and then into a subsequent collision with a nearby fence.” (at [4])

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