Is it possible for a plaintiff to lose their case when they are the only witness to the accident? Yes it certainly is.
The Respondent (to the appeal, and Plaintiff in the primary proceedings), Adam Kilani, was travelling home on an otherwise deserted road in the early hours of 8 October 2018, after a convoluted set of circumstances which had earlier led him to his office on a Sunday night. He alleged that as he was travelling home another car drove up from behind travelling fast and aggressively. In response, the Respondent’s evidence was that he pulled over to the side of the road when the other car ‘rear-ended’ him at approximately 80km/h and fled the scene. Interestingly, despite the unexpectedness of the collision, the speed with which the events occurred and that the Appellants’ vehicle never came to a stop, the Respondent managed to reach for his mobile phone and take a photograph of the fleeing vehicle and, relevantly, its number plate.
The at-fault vehicle had relevantly been stolen a short time prior to the accident, and the identity of the driver involved in the collision was not ascertained.
The Appellants relied upon expert evidence from a crash-reconstruction engineer who concluded the accident occurred at a speed much closer to 20km/h and not more than 40km/h. The expert engineer also provided reasons for why the Respondent’s account of the movements of the vehicles could not have been possible. The Respondent did not challenge the evidence of the expert engineer during the primary hearing and the expert was not cross-examined.
During the course of giving his evidence, other relevant evidence as to the Respondent’s credibility was relied upon by the Appellants. The Respondent provided a number of inconsistent and unconvincing explanations for transactions shown in his financial records. The transactions indicated he had received approximately $265,000 in income, allegedly derived from his business, post-accident, despite claiming that he had only worked four days since the accident and had not earned an income since the accident. It was also alleged that a number of the Respondent’s payslips had been fabricated by an Accountant, at the request of the Respondent, to support an application for a loan. Finally, there was some ‘bizarre’ purchasing and refunding behaviour evident from the Respondent’s credit card and the registration and insurance paperwork for the Respondent’s vehicle effectively minimised the stamp duty payable and maximised an insurance payout if the vehicle was damaged or destroyed.
Decision at first instance – Kilani v Aluabaid [2021] ACTSC 90
In consideration of the above facts, the primary judge, Elkaim J held that:
Notwithstanding the defendants’ success in attacking the plaintiff’s credit in respect of his economic loss, and accepting that the effect on his credit could be ‘transferred’ to his evidence on the accident, I nevertheless formed a much more favourable view of the plaintiff’s evidence in respect of the accident.[50]
Elkaim J forcefully rejected the evidence of the expert engineer, despite the evidence going unchallenged by the Respondent, stating that the expert’s:
approach leaves the scene of an apparently obvious rear end collision and delves into a mathematical examination of speeds, times and distances, all of which are speculative and incapable of creating the assorted doubts.’ [52]
Elkaim J, ultimately found that a breach of duty of care had occurred and awarded the Respondent $181,500 plus costs.
Decision on appeal – Aluabaid v Kilani [2022] ACTCA 31
The defendants (at first instance) appealed the judgment.
On appeal, McWilliam AJ, Loukas-Karlsson and Rangiah JJ found that the Respondent’s lack of credibility could not be overcome as to allow the Court to accept his version of events over the unchallenged analysis of the expert engineer.
Their Honours acknowledged that the Court was not required to accept the unchallenged evidence of the expert engineer (Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [355] (Callinan J)), however, the assertion that the evidence was ‘incapable’ of acceptance provided no explanation for the rejection of the expert’s evidence.
Loukas-Karlsson and Rangiah JJ considered that the Appellants had shown that ‘the Respondent was prepared to repeatedly and deliberately lie whenever it was in his financial interests to do so.’ [126] In balancing the Respondent’s credibility against the unchallenged evidence of the expert engineer their Honours favoured the expert’s evidence particularly in circumstances where the Respondent had continually asserted his version of the speed and movements of the vehicles, and had not made any concessions about his recollection of the accident.
McWilliam AJ was in agreement with their Honours and further stated that the result of the Respondent’s credibility leaves the Court with an ‘unreliable account, that was demonstrably implausible by reference to expert evidence’1. In such circumstances, the Respondent had failed to prove the Appellants’ negligence.
The Court of Appeal allowed the appeal and found that the Respondent had failed to prove that the alleged breach of duty of care had occurred.
Comments
This case was most notable because the Court of Appeal took the rare step of overturning a Primary Judge’s findings on credibility. Whilst the Court of Appeal acknowledged that the Primary Judge did have the advantage of seeing and hearing the evidence of the Respondent, the Court found this was not enough to overcome the general implausibility of the Respondent’s version of events. The Court of Appeal held that the Primary Judge erred in accepting the Respondent’s evidence despite the inconsistencies with other objective or expert evidence, and despite the possibility that those discrepancies could be explained by dishonesty in light of the Respondent’s other questionable conduct.
Insurers should fully explore liability and the claimant’s credit, even on what would appear to be claims involving the most patent breach of duty, when red-flags arise in respect of the reporting of the accident and/or in relation to evidence as to quantum.
This article was written by Sarah McJannett, Partner and Jesse Iliopoulos, Associate.
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