- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Valeriani v Geissler & Anor  QSC 315
ANDREW PETER VALERIANI
SC No 66 of 2016
Supreme Court at Mackay
DELIVERED EX TEMPORE ON:
17 October 2018
16 October 2018
Judgment for the first and second defendant against the plaintiff.
INSURANCE – MOTOR VEHICLES – INSURANCE OF MOTOR VEHICLES FOR LOSS OR DAMAGE – LIABILITY FOR PERSONAL INJURY – where the plaintiff claimed damages for personal injury resulting from a motor vehicle accident – where there was a factual dispute as to the cause of the accident – whether there was an admission made after the accident – weight given to prior inconsistent evidence – where there was an error in police report
R Trotter for the plaintiff
R Morton for the first and second defendants
Strutynski Law for the plaintiff
McInnes Wilson Lawyers for the first and second defendants
CROW J: On the 2nd of October 2013 at approximately 4.15 pm an accident occurred on Harbour Road, North Mackay. The accident was in the vicinity of the Presto Avenue Harbour Road intersection. The vehicles involved were a Honda motorcycle, mostly white, ridden by the plaintiff, Mr Andrew Valeriani. The other vehicle involved was a Holden Colorado grey in colour, driven by the first defendant, Ms Kimberly Jade Geissler.
The accident occurred on the aptly named Harbour Road, it is the major thoroughfare which joins Mackay CBD to Mackay Harbour. The road runs mostly in a north to south direction from the Mackay CBD in the south towards Mackay Harbour in the north. I accept that parts of the road in the vicinity of the accident site may run in a south-westerly direction as pleaded in the statement of claim. The plaintiff’s allegations as to what occurred are set out in paragraphs 5 to 8 of his statement of claim.
The plaintiff alleges that he was riding his motorcycle in a south-westerly direction in the right lane of the divided road section of Harbour Road heading towards Mackay CBD. The plaintiff says he had turned right into Harbour Road from Presto Avenue and that immediately prior to making his turn into Harbour Road he had noticed the first defendant’s vehicle approaching from the left at a distance of approximately 140 metres. The plaintiff says that the first defendant’s vehicle was in the left-hand lane and had not yet crossed the bridge on Harbour Road.
The plaintiff alleges that once the plaintiff was on Harbour Road, the first defendant’s vehicle was travelling behind the plaintiff and in the left lane travelling much faster than the plaintiff, and that the first defendant’s grey Colorado vehicle collided with the plaintiff’s motorcycle. The plaintiff alleges that the first defendant changed lanes from the left to the right lane such that at the time of the collision, the Holden Colorado was directly in the space occupied by the plaintiff’s motorcycle.
The plaintiff alleges that he heard the first defendant, Ms Geissler, squeal the moment before his left handlebar was ripped forwards from under his hand by the impact of the first defendant’s vehicle. The plaintiff specifically alleges that soon after the incident Ms Geissler came towards him and said to him words to the effect of, “I’m sorry. I didn’t see you. I’m sorry. I didn’t see you. Where did you come from?”
The defendants’ version is set out in its defence. It admits that the accident occurred at the time alleged, the 2nd of October 2013 at 4.15 pm. The defence admits that the plaintiff had turned right onto Harbour Road from Presto Avenue. The defence admits that the Colorado vehicle was in the left-hand lane. The defence specifically pleads a different version of the facts, namely, that the first defendant, Ms Geissler, was driving in the Holden Colorado in the left-hand lane of the dual carriageway on Harbour Road travelling towards the Mackay CBD.
The defence expressly states that the first defendant did not make any attempt to, or change into the right-hand lane, but rather the plaintiff on his motorcycle travelled into the left-hand lane and sideswiped the Holden Colorado vehicle thus causing the collision. The defence expressly says that the plaintiff’s motorcycle collided with the driver’s side rear wheel of the Holden Colorado. In this case the plaintiff’s evidence-in-chief was set out principally in the transcript, page 6 through to page 7.
In particular, Mr Valeriani, the plaintiff, said at T1-6 from lines 30 through to T1-7 lines 35, that he was riding in Presto Avenue from work towards Harbour Road, that there was a give way sign at the end of Presto Avenue, and that he stopped there because Harbour Road was a four lane road. He says that he looked to his right and the road was clear, and that he then he looked to the left and saw a grey utility in the left-hand lane 140 metres or so from the intersection. The plaintiff says that there was clear vision for quite some distance.
The plaintiff says that he proceeded on his motorcycle out to the centre islands on Harbour Road. He was able to give distances of seven metres from the give way sign while into the first lane and seven metres from there to the median strip on the right-hand side of the road. The plaintiff says that he slowed down, practically stopped at the median strip, readdressed, looked again to the left to double-check where the utility was and says it was still in the left-hand lane, that is, the utility.
Importantly, the plaintiff says that he proceeded to turn right into the right-hand lane and rode his motorcycle right up against the median strip, “because I felt that would be the safest place to be until the utility passed me”. His version in evidence was that he had looked at his speedometer when he straightened up on Harbour Road, was doing approximately 20 kilometres per hour, that he had increased his speed, but would not have reached 30 kilometres per hour. He said that he then looked to his left rear view mirror to see where the utility was to wait for it to pass so he could go behind it, and noticed that the utility had come very close to the left-hand side of the motorcycle.
The plaintiff says that he then could see the utility in the mirror and right beside him, and that he felt the left handlebar being ripped out of his left hand and the steering being thrown around to the right of the motorbike. Mr Valeriani says that at the time he heard a high pitched human squeal, which he presume came from the first defendant. The plaintiff has given earlier versions, and in particular, the first version he provided was given to perhaps the second person who came to his aid after the collision. I should add that apart from the plaintiff and the first defendant, there were no other eye witnesses.
The first defendant, Ms Geissler, came to the plaintiff’s aid immediately after the incident, but does not recall any conversation concerning what had occurred. The second person to come, it would seem, to Mr Valeriani’s aid was Pamela Gail Geissler, the mother of the first defendant. Mrs Geissler worked a little way up the road and had been recently visited by her daughter, the first defendant, and was on her way home at 4.15pm. Mrs Geissler had left soon after her daughter and, hence, came across the accident scene very shortly after it occurred.
Mrs Geissler’s evidence particularly at T1-54 and over to T1-55 records that on seeing that the plaintiff was injured, she went and sat beside him in the gutter and asked him if he was okay. Mrs Geissler said that the plaintiff just mumbled. Mrs Geissler says that she then asked the plaintiff what had happened and the plaintiff said to her, “I don’t know. I didn’t see her”. In cross-examination of Mrs Pamela Geissler at T1-55, Mrs Geissler admitted that of the plaintiff’s appearance, he was possibly in shock. She also conceded that she only sat beside the plaintiff for a brief moment.
Nonetheless, she could not be shaken from what was said at the time, that is, an admission made by the plaintiff that he did not see the first defendant which is inconsistent with his version given in evidence. Given that the plaintiff was possibly in shock, if that was the only evidence, then that may not have been enough to cause some doubt as to the plaintiff’s evidence. A difficulty is, that the first review of the accident provided by the plaintiff was to Constable Isaac Mahony at the Mackay Base Hospital at approximately 6.15pm on the day of the accident, the 2nd of October 2013.
The specifics of that conversation were recorded in the police officer’s notebook in a timely fashion. The detail is provided in exhibit 8, the police notes, and in the police notebooks from page 128 to 132. That consists of pages 13 and 14 of exhibit 8. Importantly, the police officer records at the Mackay Base Hospital after having administered the usual breath test to the plaintiff, was clear that in what Constable Isaac Mahony described as the free version, that is, the words of what occurred by the plaintiff, in the plaintiff’s own words, as follows:
“I was pulling out from Presto Avenue. I looked right and looked left. I saw a grey ute in the left lane. I pulled into the right lane. I noticed the ute was very close to my left-hand side. All I know is that we came into contact with each other. I fell off my bike and I hit the bitumen.
In the free version there is no suggestion of any fault of default on behalf of the first defendant. Constable Mahony then commenced to ask a number of detailed questions. From page 14 of the exhibit over to page 15 of the exhibit, and on pages 131 to 132 of the notebook, a number of pertinent questions were asked and answered. Relevantly, when asked:
“Q: Why do you think the incident occurred?
A: Misjudgment of distance. If I could have avoided it, I would have done it.”
Again, there is no suggestion consistent with the plaintiff’s evidence, that what occurred was entirely the first defendant’s fault because she drove so far into the right-hand lane that she struck the motorcycle whilst it was almost up against the median strip. There are three recordings in Police Constable Mahony’s notes taken on the day of the incident consistent with the first defendant’s version and not consistent with the plaintiff’s version. The failure to suggest any neglect on behalf of the first defendant on the day of the incident to the two witnesses, being Mrs Pamela Geissler and the police constable, is significant, in my view. I reiterate that at T1-7, line 11, the plainitff’s case was that the motorbike was said to be right up against the median strip.
If that were so, this accident was entirely the fault of the first defendant, and it is difficult to accept that the allegation would not be made, firstly, to Mrs Pamela Geissler but even more so on the three occasions to Police Constable Isaac Mahony. The plaintiff gave his evidence in a generally credible manner; however, there were some inaccuracies demonstrated in his recollection, and it seems to me that the plaintiff, or parts of the plaintiff’s evidence was, indeed, a reconstruction of what occurred. It is difficult to accept that the plaintiff can go from an expression to Mrs Pamela Geissler, “I do not know what occurred”, repeat that on the day of the accident to an independent witness, Police Constable Mahony, and yet provide detailed evidence as to precisely what occurred some five years later.
The second witness to give evidence was the plaintiff’s son, Mr Christopher Valeriani. The relevant evidence of Mr Christopher Valeriani is contained at T1-24 to 1-27. The evidence-in-chief of Mr Christopher Valeriani was brief. It is contained at T1-24, lines 15 through to line 31. Mr Christopher Valeriani said that after the accident, he came to the accident scene and walked close to the Colorado but only briefly. He said that he noticed damage to the front right door and the front right guard. He said of the damage, “it was scrapes, small gouges from impact or something, some sort.”
He was asked:
“Q: Did you notice any other damage towards the rear of the car?
A: I saw there was something back there, but it was - like - it was dusty covered, looked like it was previous sort of issues.
He also said at about line 30 in his observation of debris that there were plastics and pieces of the indicators and mirrors and located towards the middle of the right-hand lane towards going across to about the middle of the left-hand lane. With respect to his observation of damage, which is an important point in the case, Mr Christopher Valeriani was cross-examined.
Mr Christopher Valeriani admitted on T – at T1-26, lines 15 to 35, that in 2016, he had signed a statement concerning this matter, that the statement was accurate, that the statement was provided at the request of his father, that he told the truth in his statement, and, importantly, in paragraph 7 of the statement it is recorded that:
“I saw some dints and scratches on the Colorado on the right front door and guard. I did not notice any damage to the right rear of the Colorado.”
That is inconsistent with his evidence some five years post-accident that he did, in fact, notice damage to the right rear of the Colorado. That inconsistency is difficult to reconcile and can only be reconciled with a failing memory. This was taken further on page 1-27 from lines 5 to 35. Mr Christopher Valeriani was shown the photographs in the Hylands Repair file which is exhibit 7. When shown the photographs of the damage to the right rear, that is, the driver’s side, rear wheel area and beyond, as shown in the photographs, Mr Christopher Valeriani accepted that the damage shown in the photographs looked around the same sort of thing as he had observed on the day.
In respect of photograph 8, which showed the scrapes in the same position on the motor vehicle, when shown to Christopher Valeriani, he answered “yes” or “yep”. He was shown other photographs, and those other photographs confirmed that the ding or damage to the vehicle as shown on the driver’s side towards the rear of the vehicle was what he had, in fact, observed on the day. He, however, was unclear insofar as he said of the photographs that must have been what he saw before answering at line 34:
“Q: Well, do you remember or not?
A: Not too clearly on the back of the car now. It’s a bit hazy.”
Having to recall the specifics of a ding on a vehicle five years post-accident, Mr Christopher Valeriani can be forgiven for his memory being hazy, particularly given he is a panel beater and, no doubt, would have seen numerous dings over the five year period. However, the inconsistency between his evidence and his statement given at least two years prior to his evidence suggests that Mr Valeriani’s evidence of any damage to the front of the vehicle cannot be accepted.
The third witness called was Mrs Rebecca Valeriani. Her evidence was given in a most credible fashion. Relevantly, she said that she observed debris (at T1-29, lines 23 to 24) in the position of the right-hand lane leading into the left-hand lane over the median strip over the middle lines. The indication of damage in a broad area, including over the middle lines, does not assist the plaintiff in his case that the accident occurred close to the median strip. Mrs Valeriani also said that after the accident, the first defendant said to her, “I am sorry. I am sorry.”
I accept the evidence that the statement was said by the first defendant to Mrs Valeriani; however, I do not accept that that is an admission against the first defendant. It is consistent with something that any decent person would say following an accident when a man was severely injured. It also must be recalled that the first defendant was aged 20 at the time of the accident and now only aged 25. It is also consistent with the demeanour of the first defendant as she gave evidence in a quiet and careful manner, again consistent with saying at a scene of an accident she was sorry even though, on her version, she at all times remained entirely within her own lane.
The first defendant’s version is set out, or her initial version is set out principally at T1-37 to T1-39. It is consistent with her pleaded case. Her evidence at T1-37 was to the effect that, as she was driving along in the left-hand lane of Harbour Road driving towards the Mackay CBD, that is, in a generally southerly direction, she was heading straight ahead. She said, as she was heading into town, all of a sudden, the accident occurred. She said the first thing she heard was the noise that came from the rear of her car, and so she slowed and looked over her right shoulder. After she looked over her right shoulder, it appears at or about that time, the collision occurred.
At T1-38, the first defendant, said that when she looked over her right shoulder, what she saw was a motorcyclist stumbling on his motorcycle. There was a bit of a wobble. The first defendant then looked in her rear vision mirror, and she observed that the motorcycle rider continued to wobble a bit and then came off his motorcycle to the left-hand side. She then pulled up to a stop on the left-hand side of the road and went to his aid. Of the important point concerning damage, Ms Geissler said at T1-39 that her vehicle had been purchased new, it was a late 2012 model and that prior to the accident it had no damage at all. Post-accident, T1-39, Ms Geissler said when asked:
“Q: Was there any damage to your vehicle?
A: At that point, that is, after the accident immediately, I did not look and I did not know. I just got out to see if the rider was all right.”
When asked the question:
“Q: Did you subsequently notice any damage to your vehicle?”
“A: Not at that stage. No. Only when I checked once the police arrived.”
When I asked what she observed, she said of the damage:
“A: It was at the very rear of my vehicle. There was a dent in the driver’s side above – just before my tail-lights and a scuff mark on the rear tyre.”
She confirmed that damage had not been there before the accident, and it is reasonably expected that she ought to know given it was a new vehicle. She said that there was no damage to the front of her vehicle, nor to the right front driver’s side of the vehicle. She specifically said there was no damage to the front driver’s side door, no damage to the front mudguard, nor has there ever been any damage to that area, nor has there ever been any panel beating work or repair work done to those areas, that is, the front door or the front mudguard of the vehicle.
The description of the damage to her vehicle immediately post-accident accords in all ways with the photographs shown in exhibit 7 of the Hylands Panel work. It also accords with the evidence of Police Constable Mahony which I will refer to in a moment. The first defendant’s version is consistent. The initial version given by the first defendant to the police constable is contained in exhibit 8 and commences on page 12 – page 12 of the exhibit on 127 of the police record. Her version was:
“I was driving west down Harbour Road in the left lane. I came to the intersection of Presto. I was past the intersection. I heard a motorbike. I looked back and saw a motorbike approaching my car. I felt something hit my car. I pulled over on the side of the road, and another person called triple 0”
After the initial version and after the plaintiff’s version was provided, there is further recording of the first defendant’s version commencing on pages 15 and going through to page 17 of the exhibit in pages 132 – or portions of 132 to 136 of the police officer’s notebook. The portions of the questions and answers are relevant and of assistance. At the bottom of page 135, when asked, that is, police constable Mahony asked the first defendant:
“Q: What do you think caused the accident?
A: Lack of vision. He didn’t see me.”
“Q: Who do you think caused the accident?
A: Motorbike rider.”
In a proper and careful cross-examination of the first defendant, potential inconsistency was drawn to her attention. It is the question and answer recorded on page 16 of the exhibit and 134 of the notebook. The question is:
“Q: Where was the other vehicle when you first saw it?
A: I don’t know. It was on the ground.”
It may be accepted that is an inconsistency. However, that version, “I don’t know” is immediately, in part, contradicted by the words, “It was on the ground”. Furthermore, as recorded in the first defendant’s original version at the start, it is inconsistent with her version given to the police officer, a version which she was consistent with in giving evidence, namely, that she heard the motorcycle, she looked back, she saw the motorcycle approaching, she felt something, and then pulled over. That minor inconsistency also is something that does not cause me to doubt the evidence of the first defendant, particularly given that she was aged 20 at the time of being interviewed by a police officer.
Mr Trotter, Counsel for the plaintiff, also points to other inconsistencies, namely, the first defendant said that the motorcycle was red, when in fact, it was white, or perhaps white and blue, and that there is an inconsistency in the first defendant’s estimation of where the accident occurred in relation to the intersection. That is, the first defendant signing a diagram suggesting that the accident occurred approximately 50 metres to the south or southwest of the intersection whereas, in evidence, stating it was five metres. I note that the plaintiff considered the accident point to be 20 to 30 metres from the intersection.
Although they are inconsistencies, they do not cause me to doubt the honesty of the first defendant’s evidence in that she was doing the best she could. The first defendant, gave her evidence in an impressive manner. By that, I mean that her demeanour was of a person consciously doing their best to provide evidence, but occasionally, as was demonstrated in cross-examination, getting it wrong with respect to issues such as the colour of the bike and the distance of the collision from the intersection.
Although the first defendant had an impressive demeanour, I do not place too much weight upon that factor. I rely upon the observation of Lord Justice Atkin in the following case, Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co. (The Palitana) (1924) 20 Ll L Rep 140 at 152, that:
“An ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of the evidence with known facts, is worth pounds of demeanour.”
In this present case, although the first defendant provided her evidence in a manner which suggested that she was doing her best, in determining which version to accept, I principally rely upon the objective evidence. In particular, I rely upon exhibit 7, which is the Hylands crash file noting the damage occasioned to the Holden Colorado and, specifically, the photograph showing the area of damage, which is consistent only with the first defendant’s version of the event, rather than the plaintiff’s version of the event.
In addition to exhibit 7, there is the evidence of police constable Isaac Mahony. Police constable Isaac Mahoney was the investigating police officer, as I have mentioned. Exhibit 8 is a rather unfortunate document that consists not only of the important police notebook records, which I have placed weight upon, but a series of other documents, of which I place little or no weight. The exhibit contains information which records, in the report, that the damage occasioned to the Colorado was on the front right door and the front right fender, consistent entirely with the plaintiff’s case. The difficulty is, as the police constable explained, that the report was made in error.
The error is explained in several passages, commencing at T1-65. After having identified the report records of the Colorado having damage to the front right door and front right fender, Constable Mahony said that, with respect to the electronic form of reporting, that if you ticked a box in a dropdown menu, it automatically populates through the entire report, thus one error is continued throughout various parts of the report. Specifically, he was asked, T1-65, line 46:
“Q: Do you recall any damage to the front of the Colorado?
At T1-65, lines 1 and 2:
“Q: Do you recall any damage to the rear?
A: I do. The rear around - the rear right fender around the rear wheel on the driver’s side.”
In cross-examination, at T1-68, Constable Mahony again explained the error, that is, the entire report is several different reports within the report. An error had occurred in the vehicle NVC report. He said that he assumed the error arose as a consequence of ticking the wrong box in the selection criteria of where the damage had occurred. When asked why he assumed that, the constable said, “because that’s not where the damage occurred”.
When cross-examined carefully upon the report, at T1-68, lines 30 to 34, when it was suggested to the constable, that it was quite clear from the time of the accident, that the damage was to the front of the car on the front right-hand side, he again answered, “It wasn’t to the front of the car”.
Constable Mahony was further pressed, and on this issue, and the evidence relevant as at T1-70, after admitting to a spelling error of “front” being spelt as f-o-n-t, Constable Mahony said that he was not aware of the error with the recording of the damage until today, that is, the day that he gave evidence. Further, because he was a new police officer, he, in fact, had a recollection of the incident. He remembered seeing where the damage was done to the Colorado, and he confirmed that he recalled that the damage to the Colorado was near the driver’s side rear wheel and rear right door as well, and not at the front of the vehicle.
I accept Police Constable Mahony’s evidence as independent evidence. I find, as a fact, there was no damage to the front of the Colorado, nor damage to the driver’s side door area of the Colorado, and that all of the damage was occasioned as is shown in exhibit 7, the photographs.
On the evidence of which I accept, I find the following: that the plaintiff was riding his white Honda motorcycle from Presto Avenue, that he stopped at the give way sign at Harbour Road, that he proceeded to cross the highway, he slowed, that he drove onto Harbour Road, and that he failed to see the grey Colorado. I accept the evidence of Mrs Pamela Geissler of that admission made at the scene.
I find that the plaintiff drove into the south or southwest bound lanes towards the Mackay CBD, and that he intended to take his motorcycle across to the left-hand lane, which was occupied by the Colorado. I find that, having failed to see the Colorado, he drove into the left-hand lane that was, in fact, occupied by the Colorado and that the front tyre of his motorcycle struck the Colorado in the rear wheel area, resulting in the marks shown in exhibit 7, photographs 12 and 13, and that immediately following that, an upper part of the motorcycle struck the right rear side near the taillights, as shown in exhibit 7, photographs 8, 9, 10, and 11.
I find that the collision occurred whilst the Colorado was entirely within its own, that is, the left-hand lane. I find that the motorcycle, having struck the Colorado on the right rear driver’s side as depicted in the photographs, the first defendant did not see the motorcycle until, as she said in her evidence, she heard the motorcycle at a point where she was unable to take any action to avoid the imminent collision. I find that the first defendant did not squeal, as the plaintiff alleged, but rather took the action that she said, namely, after observing the motorcycle and the accident occurring, she brought her Colorado vehicle to a halt and went to the plaintiff’s aid.
Accordingly, the plaintiff’s action is dismissed and I give judgment for the first and second defendant against the plaintiff.
- Published Case Name:
Valeriani v Geissler & Anor
- Shortened Case Name:
Valeriani v Geissler
 QSC 315
17 Oct 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 315||17 Oct 2018||Plaintiff's claim in negligence dismissed; judgment for the defendants: Crow J.|