Australia: The importance of putting evidence to a witness in cross-examination

Last Updated: 19 September 2019
Article by Natasha Miller and Amber Burton

Holman Webb is pleased to relay our CTP Insurance team's success in relation to the case of Qui v Obeid [2019] NSWCA 207 ('Qui v Obeid').

The Plaintiff was injured in a rear-end collision with the Defendant's vehicle. Whilst her case did evolve over time, the Plaintiff ultimately went with a version where she was pulling out of a parking spot when she was rear-ended at extreme speed. Holman Webb successfully represented the Defendant in the interest of his CTP insurer.

The Defendant was certain that the Plaintiff had turned across his path from the other side of the road, but had given differing accounts as to whether she had performed a "U-turn", or had come out of a driveway.

Both parties' crash engineers concluded that either of these scenarios were possible.

The crash engineers (who gave evidence concurrently) also agreed on a possible scenario where the Defendant approached at a speed in excess of 129 km/h and rear-ended the Plaintiff, who had already commenced pulling out of the spot. This scenario was based on various estimates of time and distance provided by the Defendant in cross-examination.

The allegation of speeding had not been put to the Defendant in cross-examination, and there was no application to re-call him in order to do so.

Sorby ADJC found for the Defendant. The Plaintiff appealed. The Court of Appeal dismissed the appeal (per Simpson AJA , Gleeson and Payne JJA agreeing).

Possible alternate scenarios

The trial judge made a positive finding that the Plaintiff had emerged from a driveway, but also found that she had performed a U-turn.

The Court of Appeal accepted that there had been "...an irreconcilable tension in these two findings".

With this said, the Court of Appeal did not accept that this brought the initial factual findings into the category which ought to be disturbed on appeal - that being findings which are shown to be wrong by "incontrovertible facts or uncontested testimony" or are "glaringly improbable" or "contrary to compelling inferences".

Her Honour held that whether the Plaintiff had swung out from the driveway, or had attempted a U-turn made little difference, saying that " these matters scarcely deserve the time and attention paid to them". The onus was on the Plaintiff to execute either manoeuvre safely.

In other words, an anomalous factual finding ought not to be disturbed if it is immaterial to the ultimate conclusion.

Estimate of time

In support of the scenario, Justice Simpson noted that the Defendant had been speeding, and had failed to keep a proper lookout, the Plaintiff had placed "heavy reliance" on "calculations made by Mr Keramidas [a Collision Dynamics Expert] during the dying minutes of the concurrent expert evidence" - with such calculations having been based on the Defendant's evidence that he had "5 seconds" to observe and react to the Plaintiff's vehicle.

She held that:

"...no weight can be accorded to that assessment; when seen in context, it was made by the respondent in response to cross-examination in which he had said that "all of a sudden" the appellant made a U-turn in front of him. His assessment of speed was not a true assessment but an attempt to emphasise the urgency of the situation with which he was confronted".

Credit

The Appellant (Plaintiff) asserted that the trial judge had erred in relying on statements reportedly made by her and her passengers to medical personnel and police, in preference to their oral evidence at trial.

Her Honour noted that the trial judge made an explicit finding in relation to the credibility of the Defendant, stating that he was "sure and convincing in his evidence". The court accepted that given the Plaintiff's conflicting accounts, it was inevitable that had any explicit findings as to her reliability been made they would have been unfavourable.

Key Takeaway

It is common for drivers and other lay witnesses in motor accident claims to be asked to estimate times, speeds and distances, and for these estimates to be factored into expert opinion evidence.

In this matter, the Plaintiff's case had rested too precariously on the Defendant's estimate (5 seconds), meaning that once this evidence was found to be unreliable, the entire scenario fell out of contention.

It is therefore crucial for parties to recognise that where expert opinion evidence is based too narrowly on a specific estimate, it will be susceptible to attack. This issue can be dealt with by:

  • Instructing the expert to address a reasonable range of time periods (or speeds or distances).
  • Corroborating or firming up the lay witness' estimate in some way. With distances, this may be done by reference to some distance familiar to the witness (e.g. a cricket pitch) or in comparison to the width of the courtroom.

The decision also comes as a timely reminder that the rule in Browne v Dunn (1893) 6 R. 67, H.L is alive and well. The failure to put the allegation of speed to the Defendant would have created major difficulties for the Appellant, even if the court had accepted that the speeding scenario was viable.

If there is any doubt that the rule has been complied with, leave should be obtained to re-call the witness in order to comply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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