Andonopoulos v Rainbow - [2015] SASCFC 186

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ANDONOPOULOS v RAINBOW
[2015] SASCFC 186
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
10 December 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS CLEARLY WRONG - GENERALLY
Appeal against dismissal of a claim for damages for personal injury. The first appellant was riding his bicycle to work in the early hours of the morning when he collided with the respondent’s B-double semi-trailer when turning onto South Road from a carpark. The first appellant was following his usual route and wearing safety gear, including lights. The respondent admitted that he had been focussing on the traffic lights ahead of him, his speedometer, and checking for cars to his right immediately before the collision – he was not expecting anything to his left. At trial, the first appellant drew his route on a map. The Judge found that the drawing contradicted his version of events, and made a series of adverse findings concerning the plaintiff’s evidence.
Whether the Judge proceeded under a misapprehension of fact.
Held per Gray J (Sulan and Peek JJ agreeing)(allowing the appeal):
1. The Judge was under a material and significant misapprehension of fact, which led him to doubt the truthfulness and reliability of the plaintiff’s account and coloured his approach to other aspects of the plaintiff’s evidence and case.
2. Retrial ordered.
Fox v Percy (2003) 214 CLR 118; Allen v Chadwick (2014) 120 SASR 350; Terry v Leventeris (2011) 109 SASR 358; Andonopoulos & Anor v Rainbow [2015] SADC 35, considered.

ANDONOPOULOS v RAINBOW
[2015] SASCFC 186
Full Court: Gray, Sulan and Peek JJ
GRAY J.

This is an appeal from a decision of a Judge of the District Court dismissing a claim for damages for personal injury.[1]
[1] Andonopoulos & Anor v Rainbow [2015] SADC 35.
Background
On 14 December 2006 at 5.23 am, the defendant and respondent, Brian Rainbow, was driving a large “B-double” consisting of a prime mover towing two articulated trailers north along South Road at Thebarton.
The first plaintiff and appellant, Fotis Andonopoulos, was riding his bicycle to work. He had on a safety vest which was yellow with black stripes. He had a small pocket made of mesh material on the back of his backpack, and in it was a red flashing tail light, which was visible from behind. The plaintiff had also turned on the tail light fixed to the bicycle, which was the same as the light in the mesh pocket, as well as the front light, which had a constant beam to enable him to see the road surface. The plaintiff was wearing his helmet.
A collision occurred between…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andonopoulos v Rainbow

Details

AGLC: Andonopoulos v Rainbow [2015] SASCFC 186
Case: [2015] SASCFC 186
Decision Date: 10 December 2015

CaseChat Overview and Summary

The appeal concerned a claim for damages for personal injury arising from a collision between the first appellant, Mr. Andonopoulos, who was riding his bicycle, and the respondent’s B-double semi-trailer driven by Mr. Rainbow. The collision occurred in the early hours of the morning as Mr. Andonopoulos was cycling to work and turning onto South Road from a carpark. At trial, the Judge made adverse findings concerning Mr. Andonopoulos's evidence, partly based on a perceived contradiction between his oral account and a map he drew of his route. The trial court dismissed the claim.

The legal issues before the appellate court included whether the trial Judge had made a material misapprehension of fact that affected his assessment of the evidence and whether this misapprehension warranted interference with the findings of fact. The court was required to consider the function of an appellate court in reviewing findings of fact, particularly where those findings were based on documentary evidence and the credibility of witnesses.

The appellate court found that the trial Judge had laboured under a significant misapprehension of fact regarding how Mr. Andonopoulos entered South Road and the circumstances of the collision. This misapprehension, the court reasoned, improperly influenced the Judge's assessment of the truthfulness and reliability of Mr. Andonopoulos's account and coloured his approach to other aspects of the plaintiff's case. The court held that the theoretical scenarios relied upon by the trial Judge were based on assumptions and provided an unsafe foundation for dismissing the claim.

Consequently, the appeal was allowed, and the matter was remitted for a retrial before a differently constituted court. The appellate court considered it inappropriate to address other grounds of appeal, as doing so might prejudice arguments that could be fairly advanced on retrial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal from a decision of a Judge of the District Court dismissing a claim for damages for personal injury.[1][1] Andonopoulos & Anor v Rainbow [2015] SADC 35.Background On 14 December 2006 at 5.23 am, the defendant and respondent, Brian Rainbow, was driving a large “B-double” consisting of a prime mover towing two articulated trailers north along South Road at Thebarton. The first plaintiff and appellant, Fotis Andonopoulos, was riding his bicycle to work. He had on a safety vest which was yellow with black stripes. He had a small pocket made of mesh material on the back of his backpack, and in it was a red flashing tail light, which was visible from behind. The plaintiff had also turned on the tail light fixed to the bicycle, which was the same as the light in the mesh pocket, as well as the front light, which had a constant beam to enable him to see the road surface. The plaintiff was wearing his helmet. A collision occurred between the defendant’s semi-trailer and the plaintiff’s bicycle, when the bicycle was struck on the right handle bar by the left side of the defendant’s vehicle. This produced a scrape mark on the right handle bar of the plaintiff’s bicycle, and a twisting of the handle bars anticlockwise to the bicycle. The plaintiff suffered severe injuries when he fell and was run over by one or more of the wheels of the tri-axle combination at the rear of the rear-most trailer of the defendant’s semi-trailer. The injuries to his left leg resulted in a below-knee amputation. He also suffered right leg and pelvis injuries and psychological injuries. The Trial The trial proceeded on the issue of liability only. The plaintiff’s case at trial was that he had followed his routine of riding to work on a bicycle. He followed the same route. This included using the southernmost of two parallel driveways in a car park on the eastern side of Thebarton Oval before entering South Road to travel north. On the day of the collision, he was on the road to be seen by the defendant. The defendant’s rig was only 2 feet from the gutter and did not slow or move to the right before the collision. The defendant negligently failed to see the plaintiff and travelled too close to the plaintiff. The defendant did not see the plaintiff before the collision. The defendant conceded that, immediately before the collision, he was focussed on the green lights ahead of him at the intersection of South Road and Ashwin Parade, on whether there were cars to his right, and on checking his speedometer – he was not expecting bicycles or anything to emerge from the car park to his left. The defendant’s case at trial was twofold. He argued that the plaintiff had failed to establish a factual basis for a finding of negligence on the part of the defendant. It was further argued that the more likely scenario on the established facts was that the plaintiff had ridden his bicycle into the side of the defendant’s truck when the front of the truck had passed the point where the plaintiff entered South Road. This was said to be consistent with the defendant’s evidence that he had not seen the plaintiff and that he believed that he would have seen the plaintiff if he had been in front of the truck. Alternatively, it was said that, at best for the plaintiff, he had ridden onto South Road in front of the defendant’s truck at an earlier time, in which event an issue would arise as to whether, conceivably, the defendant could have taken any effective evasive action.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J SULAN J PEEK J

On the appeal, counsel for the plaintiff advanced a number of other arguable complaints. However, I have reached the view that the earlier referred to misapprehension of itself requires that the appeal be allowed and the matter remitted for a retrial. In these circumstances, I do not consider it appropriate to address the other complaints, as to do so may foreclose arguments that may be fairly advanced on the retrial. Conclusion At trial, the Judge was under a material and significant misapprehension of fact. His misapprehension led him to doubt the truthfulness and reliability of the plaintiff’s account of how he entered South Road and how the accident occurred. This misapprehension coloured his approach to other aspects of the plaintiff’s evidence and of the plaintiff’s case. The theoretical scenarios relied on a number of assumptions and provided a wholly unsafe basis on which to reject the plaintiff’s claim. It is to be accepted that the plaintiff carried the onus, but he was entitled to have the Judge consider the discharge of that onus without labouring under a serious misapprehension of fact. For these reasons, I would allow the appeal and remit the matter for a retrial before a differently constituted Court. I agree with the reasons of Gray J and the orders he proposes. I agree with the orders proposed by Gray J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, SULAN J, PEEK J

Full text does not contain this section.