Alshara v Hobson - [2007] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
ALSHARA v HOBSON
[2007] SADC 111
Judgment of Her Honour Judge Shaw
26 October 2007
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Minor Civil Review - Application for review seeks to adduce fresh evidence from an independent witness - Order that there be a rehearing of the evidence - Applicant's claim concerned property damage to vehicle - After hearing fresh evidence, the decision of the Magistrate rescinded - Judgment entered for applicant in the sum of $1,060.26
Magistrates Court Act 1991 s38(7)(b), s38(7)(c), s38(7)(d)(ii), referred to.
Caruso v Beard [1997] SASC 6512, applied.

ALSHARA v HOBSON
[2007] SADC 111

This is an Application pursuant to section 38 of the Magistrates Court Act 1991 to review a minor civil decision made on 15 March 2007 by a Magistrate whereby he found that the applicant, Ms Alshara, was primarily responsible for an accident on Bagot Avenue, Thebarton, on 6 April 2006, and apportioned liability 60% against Ms Alshara and 40% against the respondent, Ms Hobson. His Honour determined that the applicant’s claim for damages was in the sum of $1,325.00 and the respondent’s claim was in the sum of $2,842.40.
The Hearing in the Magistrates Court
Three witnesses gave evidence in the Magistrates Court, Ms Alshara, Ms Alshara’s husband and Ms Hobson. In addition, photographs of the accident scene and proof of damages were received.
The Learned Magistrate concluded that whilst Ms Alshara was stationary in Bagot Street before executing a right hand turn into a shopping centre car park, her rear indicator light was not operating.
His Honour preferred Ms Hobson’s evidence to Ms Alshara’s evidence in relation to this issue.
He concluded that Ms Alshara had failed to keep a proper lookout when making a right hand turn.
The Learned Magistrate did not accept the entire version given by either principal witness for either party.
The Learned Magistrate concluded that Ms Alshara was mistaken in her evidence that a male was driving Ms Hobson’s car and not Ms Hobson.
The Learned Magistrate concluded, contrary to Ms Hobson’s evidence, that Ms Alshara’s car was not parked in Bagot Street, immediately before Ms Alshara commenced to make a right hand turn. He found that the vehicle driven by Ms Alshara was stationary opposite the entrance to the car park.
He decided that the respondent contributed to the accident because a reasonable driver who saw the applicant’s vehicle in that position, would have proceeded with caution.
Nature of this Application for Review
My powers on applications for review are found in s38 of the Magistrates Court Act 1991. In particular, I may inform myself as I think fit and I am not bound by the Rules of Evidence (see s38(7)(b)). Further, I am empowered to rehear evidence taken before the Magistrates Court (see s38(7)(c)). Though it is not spelled out, it is clear also that the above powers include receiving fresh evidence.
The Review in this Court
The applicant asked the court to receive fresh evidence from Ms Hanley, who said that she was a witness to the accident.
I accept that during the hearing in the Magistrates Court, Ms Alshara advised the Learned Special Magistrate that she had a witness to the accident who was unavailable on the day of the hearing. The applicant was not informed of her right to apply for an adjournment to enable her to call the witness. The applicant sought to call evidence from that witness. The applicant gave a proper explanation for failing to call the witness at trial. When considering the question of whether to allow fresh evidence on appeal, a number of matters needed to be considered (see Caruso v Beard [1997] SASC 6512). Firstly, I am satisfied that there was a proper reason for the failure to call the witness at trial. Although the Learned Magistrate found in favour of the respondent, he did not have the benefit of evidence from an independent witness. Finally, I am of the view that the evidence is vital for the just determination of the case. The respondent submitted that this evidence ought to have been called at the trial.
I note that in a letter to the insurance company, which was before the Learned Magistrate, the applicant had supplied the name of that witness to the respondent’s insurance company.
Ms Hobson acknowledged before me, that she had been advised by her insurance company that there was a witness.
In all the circumstances, I formed the view that there were cogent reasons to allow fresh evidence from Ms Hanley. I granted leave to the applicant to call Ms Hanley. Having regard to the evidence already given at the trial, the substantial issue was whether Ms Hanley was a credible independent witness such that her evidence would have necessarily resulted in the applicant proving her case.
Ms Hanley was called in this court, and confirmed the applicant’s evidence in important respects. She said that she was travelling south along Bagot Avenue and saw the applicant’s vehicle stationary facing north.
She said that she saw the right side indicator of the applicant’s vehicle operating, which she concluded was inddicative of an intention to turn right into the car park.
Ms Hanley was travelling relatively slowly because of speed bumps on Bagot Avenue.
She gave evidence that Ms Alshara was waiting for her vehicle to pass. Although the incident happened very quickly, she had the impression that the driver of the overtaking vehicle was a male. However, she gave a very general description of the driver. I see no reason to interfere with the Magistrate’s acceptance that the driver was Ms Hobson.
Ms Hanley also said there was a female passenger.
Ms Hanley said that she saw Ms Hobson’s vehicle travel onto the wrong side of the road as it commenced to overtake. She saw the collision which followed.
Ms Hanley gave her details to Ms Alshara’s husband within half an hour of the accident.
She does not know either of the parties to this claim. The respondent cross-examined Ms Hanley about her version of the accident. I have regard to the submissions of the parties and to the evidence given in the Magistrates Court.
Findings
I find that Ms Hanley was a completely independent witness.
I found her to be an honest witness.
Ms Hanley supports Ms Alshara in relation to the crucial question of whether Ms Alshara’s right indicator was operating prior to the collision. I am of the view that if the Learned Magistrate had had the benefit of Ms Hanley’s evidence, he would have concluded that the applicant had made out her case.
I find that Ms Alshara was stationary intending to turn right into the car park immediately prior to the collision.
I find that Ms Alshara was keeping a look out whilst Ms Hanley’s vehicle approached.
I find that Ms Hobson’s vehicle entered Bagot Street from Henley Beach Road and overtook Ms Alshara’s vehicle on the wrong side of the road whilst Ms Alshara’s indicator was operating and whilst a vehicle was approaching from the opposite direction.
Therefore, I conclude that Ms Hobson was primarily responsible for the accident.
Ms Hobson overtook in circumstances when it was clearly not safe to do so and in circumstances where the vehicle being overtaken was indicating its intention to turn right. Further, the other vehicle had taken up a stationary position in preparation for carrying out that manoeuvre.
I find that a reasonable driver in Ms Alshara’s position ought to have kept a lookout in relation to vehicles overtaking from the rear. However, Ms Alshara’s proximity to Henley Beach Road and the fact that her indicator was correctly operating at the time reduces her level of contribution to the accident.
Accordingly, I am of the view that Ms Hobson is 90% responsible for the accident and Ms Alshara is 10% responsible for the accident.
Conclusion
It follows that the Application for Review must be allowed.
Pursuant to s38(7)(d)(ii) of the Magistrates Court Act 1991, I rescind the judgment of the Learned Magistrate entered on 15 March 2007 and substitute in its place judgment for Ms Alshara in the sum of $1,060.26 which includes $82.00 filing fee and $70.00 Application for Review fee.
The above judgment is calculated as follows:
90% of $1,325.00 = $1,192.50
10% of $2,842.40 = $284.24
Balance: $908.26
I note that I made an order for costs relating to Ms Hanley’s attendance on an earlier occasion. I revoke that order upon being satisfied that Ms Hobson was not aware of that hearing date. I am not satisfied that I ought to make any order for the costs of Ms Hanley’s attendance in all the circumstances.
The formal order of the court is:
1. The decision of the Learned Magistrate is rescinded.
2. There will be judgment for the applicant against the respondent in the sum of $1,060.26, which is inclusive of the cost of issuing the Summons as particularised in the applicant’s claim at first instance, and, the costs of issue of the Application for Review.