Aronis v Simmons No. DCCIV-03-1072

ARONIS V SIMMONS
[2004] SADC 15
Judge Kitchen
Civil

This is an application, pursuant to Section 39(6) of the Magistrates Courts Act 1991, to review the matter of a judgment entered in proceedings heard as a minor civil action in the Magistrates Court in which Mr Michael Aronis (Mr Aronis), the plaintiff in the proceedings, claimed from Ms Tracey Simmons (Ms Simmons), the defendant in the proceedings, damages for the cost of repairing, and the loss of use of, a taxi motor vehicle owned by Mr Aronis, which on 13^th October 2002 collided with a motor vehicle owned and being driven by Ms Simmons. At the time of the collision Mr Aronis’ taxi was being driven by Mr Ibrahim Shahbedin Mohammed (Mr Mohammed).
The collision occurred on the roadway adjacent to house premises at 9 Arnold Street, Underdale where Ms Simmons’ brother-in-law, David John Holden, a medical practitioner (Dr Holden) lived.
Ms Simmons vehicle was also damaged in the collision; she filed a defence in the proceedings and a counter-claim for the cost of repairs to her motor vehicle.
The Magistrate found that the negligence of each driver contributed to the collision. He apportioned liability as to 80% against Mr Mohammed and 20% against Ms Simmons. Judgment was entered for Mr Aronis in the sum of $574.56, inclusive of costs and disbursements, on the claim against Ms Simmons; and judgment was entered for Ms Simmons in the sum of $840, inclusive of costs and disbursements, on the counterclaim against Mr Aronis.
In his reasons for judgment the Magistrate noted that he had been told the quantum of the claim by Mr Aronis had been agreed. Mr Aronis’ claim was for $2,812.80, and he had incurred $60 filing fees, making a total of $2,872.80, 20% of which is $574.56. There was adduced before the Magistrate an estimate in writing by Caddell Crash Repairs that the cost of repairs to Ms Simmons’ motor vehicle totalled $990.00; the Magistrate obviously accepted that evidence, and that Ms Simmons incurred $60 in court filing fees, in awarding judgment for Ms Simmons in the sum of $840.00, that is 80% of $1,050.00.
Mr Aronis does not challenge the Magistrate’s acceptance of the quantum of the loss suffered, or the costs and disbursements incurred, by each party. His complaint is:
“2.   The grounds upon which the Review is sought are as follows:
(a)    The learned Magistrate erred in placing weight on alleged skid marks which the learned Magistrate accepted were the result of the driving of the applicant’s motor vehicle;
(b)    The learned Magistrate erred in failing to place weight on photos taken by the applicant which indicated pre-existing skid marks;
(c)    The learned Magistrate erred in failing to place weight upon the position of the vehicles following the accident, which the applicant says did indicate that liability for the accident did lay with the respondent;
(d)    The learned Magistrate erred in failing to place weight upon the damage to the respective vehicles, which the applicant says indicates that the fault for the accident did lay with the respondent.
2.The following order is sought by the Applicant:
(a)   That the decision of the learned Magistrate be set aside and the respondent be found wholly liable for the accident.”
Mr Aronis does not contend that he omitted to present, or was prevented from presenting, all the evidence he wished to put before the court or that he was not given every opportunity to fully present his case or to cross-examine Ms Simmons, and her witness Dr Holden, and neither does he complain that the Magistrate failed to have regard to the evidence properly before the court or had regard to evidence that was not properly before the court. The substance of his application is that the Magistrate erred in finding, and giving weight to the finding, that skid marks on Arnold Street were caused, immediately before the collision, by the taxi being driven by Mr Mohammed, and in failing to place weight on the position of each vehicle after, and the damage caused to each vehicle in, the collision. He further complains that the Magistrate failed to place weight on photographs, taken by him, which he asserts indicate the skid marks were present before the collision.
Mr Mohammed’s evidence was that after dropping a fare he drove the taxi along Holbrooks Road and then turned left into Arnold Street to travel to the west; it was about 11.30 a.m. and the roadway, which he described to be a twoway “ordinary suburban street”, was dry. He then saw Ms Simmons’ vehicle ahead of him in Arnold Street travelling on the left side of the roadway in the same direction as his taxi and that Ms Simmons’ vehicle was indicating a left hand turn, as he thought to park on the left-hand side of the roadway; he said he could not remember how far Ms Simmons’ vehicle was ahead of him. He related that, travelling at 30 to 40 kilometres per hour, he set out to overtake Ms Simmons’ vehicle on its right-hand side but that vehicle suddenly turned to the right, without indicating, and the taxi collided with Ms Simmons’ vehicle.
Mr Mohammed said that after the collision Ms Simmons got out of her vehicle, went into a house, abutting the roadway, and returned in company with, it is not disputed, Dr Holden who was carrying a camera, and another person. When asked by Dr Holden for his “details” Mr Mohammed refused to provide them because Dr Holden had not been involved in the collision and the collision was not Mr Mohammed’s fault.
Mr Mohammed told the Magistrate that in the collision damage was caused to the left-hand front side of the taxi; as the Magistrate observed, and it is undoubtedly the case, that is consistent with the account for the repairs to the taxi from MTN Crash Repairs which was before the Magistrate.
Questioned by Mr Aronis in the proceedings before the Magistrate, Mr Mohammed was shown a photograph which Mr Aronis told the Magistrate had been provided to him (Mr Aronis) by Ms Simmons. Mr Mohammed said that after the collision he looked at the roadway and the skid marks shown in the photograph were not “at that place” where the collision occurred between the taxi and Ms Simmons’ vehicle. As best I can infer from the evidence, the photograph shown to Mr Mohammed was one of the two photographs, part of Exhibit D1, depicting skid marks on the roadway of Arnold Street. In the same exhibit there are seven photographs of Ms Simmons’ vehicle; Mr Mohammed said he remembers seeing the damage to Ms Simmons’ vehicle depicted in the photograph marked “1”. That damage is to the leading edge of the driver’s door, and the panel in front of it immediately behind the front right-hand wheel.
Ms Simmons gave evidence that she drove from Holdbrooks Road into Arnold Street on the way to Dr Holdens’ house at number 9. She had made the journey many times before. She said she saw, in her rear driving mirror, that a taxi was behind her “but quite a distance away” and when she was about “level” with the driveway entrance to Dr Holdens’ house she operated the indicator lights of her car to signal a turn to the right to drive into the entrance to number 11 Arnold Street (the premises next door to Dr Holden’s house) intending to reverse from there and park at the kerb in front of Dr Holden’s house. Ms Simmons described that when her vehicle, travelling at about five to ten kilometres an hour in the course of the turn heading toward the driveway of number 11, was about one metre from the kerb line the taxi collided with the right hand side of her vehicle.
Ms Simmons said that after the collision both she and Mr Mohammed drove their respective vehicles to, and parked them at, the southern kerb. She got out of her vehicle, went into Dr Holden’s house and then returned with her father and Dr Holden to the scene, where Dr Holden took photographs about ten minutes after the collision had occurred; one of the photographs shows the taxi, which Mr Mohammed had been driving, parked at the southern kerb.
Taken to the photographs of the scene of the accident (part of Exhibit D1) Ms Simmons said that the two parallel skid marks shown in the photographs were caused by the taxi; one photograph is marked “looking east” the other “looking west”. Ms Simmons said that the blue car shown parked on the northern side of the road was not in that position at the time of the collision, and, she told the Magistrate, that although difficult to see, the photographs show “two little plugs” which fell onto the roadway from the right-hand front mudguard of her vehicle in the collision. Ms Simmons marked the photograph with a circle around the plugs and with lines to show the stationary position of her vehicle after the collision.
Ms Simmons denied that she pulled to the left of the roadway before making her turn toward the driveway of 11 Arnold Street. She was not directly asked, but it is implicit in her evidence that she did not give an indication to make a left hand turn.
Dr Holden’s evidence to the Magistrate was that he, observed by Mr Mohammed, took the photographs in Exhibit D1, which show views of Arnold Street, about twenty to thirty minutes after the collision. He said he had not noticed the parallel skid marks on the roadway before the collision between the taxi and Ms Simmons’ vehicle, and he had no recollection of hearing any vehicles breaking hard or doing “burn-outs” prior to the collision.
Mr Aronis produced to Dr Holden photographs which Mr Aronis told the Magistrate had been taken in Arnold Street. Dr Holden said those photographs were of a street on the road surface of which a centre line had been painted, a feature not present in Arnold Street (as the Magistrate observed for himself in the photographs Exhibit D1). The photographs produced by Mr Aronis were not tendered or received in evidence by the Magistrate; if relevant at all they could only be as to the appearance of asserted tyre burnout marks on a street, other than Arnold Street, as part of Mr Aronis’s submission that the marks on the roadway shown in Exhibit D1 were “burn-out” marks and not skid marks caused by the taxi driven by Mr Mohammed. As part of that submission Mr Aronis urged that the tyre marks on the roadway shown in Exhibit D1 could only have been caused by a vehicle breaking heavily from a speed of seventy to eighty kilometres per hour.
The Magistrate found:
“The defendant intended to turn into No. 11 Arnold Street and in the vicinity of that house she placed her vehicle indicator on to show that she was turning right.
The driver was travelling immediately behind the defendant and either failed to notice the indicator or believed he had sufficient time to pass.
The defendant got out of her car and spoke briefly with the driver before going into her sister’s house to get her father and brother-in-law.
That Dr Holden called the police.
That Dr Holden took photographs within a half hour of the collision.
That the skid marks on the road were made by the taxi.
In the circumstances I am satisfied that the bulk of the responsibility for this collision rests with the taxi driver. However, I have some concerns about the amount of time given by the defendant to indicate her intentions and that may have contributed to some degree to the collision. I find that 20% of the fault for this accident should rest with the defendant.”
The damage done to each of the vehicles – the front left side of the taxi and the area of, and forward of , the driver’s door to Ms Simmons’ vehicle – was consistent with the collision as described by each of Mr Mohammed and Ms Simmons. Mr Mohammed’s evidence was the he was travelling at 30 to 40 kilometres an hour as he set out to pass Ms Simmons’ vehicle.
It was open to the Magistrate to accept Ms Simmons’ evidence of the position on the roadway where the collision occurred – Mr Mohammed said that he set out to overtake Ms Simmons’ vehicle, from which it could be inferred that he drove the taxi onto, or partly onto, the wrong side of the road such than when he saw Ms Simmons’ vehicle turning across his path his taxi, under braking, would likely describe a path to the point of collision consistent with the skid marks shown in Exhibit D1. The evidence of Ms Simmons and Dr Holden if accepted combine to point to the skid marks having been caused by the taxi, particularly Ms Simmons’ testimony as to the position on the roadway of rubber plugs dislodged from her vehicle in the collision.
Mr Aronis urged on this review that Arnold Street was wide enough for Mr Mohammed to have driven to pass Ms Simmons’ vehicle on its left side were she to have been signalling a turn to the right, and that the Magistrate should have found that Ms Simmons did not make such a signal but rather she moved to the left then, when Mr Mohammed went to pass her on the right side, turned across his path, in the course of making a U-turn, causing a collision which Mr Mohammed had no or little opportunity to avoid, closer to the centre of the road than the western end of the skid marks shown in the photograph.
That submission, or the substance of it, was put to the Magistrate. If it had been accepted by the Magistrate then likely the apportionment of liability would have been preponderantly adverse to Ms Simmons. However the Magistrate, who had the inestimable advantage of observing the witnesses as a factor to assist him in weighing competing versions of events, found that Ms Simmons signalled her intention to turn to the right in circumstances where, it is to be inferred the Magistrate likely accepted, she knew that Mr Mohammed’s taxi was travelling behind her. Once the Magistrate accepted there was such a signal then depending upon the Magistrate’s view of the timeliness of that warning it was incumbent on Mr Mohammed to not try to overtake Ms Simmons’ vehicle.
In my opinion there is nothing in the evidence before the Magistrate to show, or even suggest, that it was unreasonable for him to accept Ms Simmons’ evidence that she did signal her intention to turn to the right; indeed it might be said that her evidence fixing her position on the roadway when she activated her indicator was, as appears from the Magistrate’s finding, against her interests and resulted in an apportionment of liability against her.
As I have said, Mr Aronis does not complain that he was treated unfairly in the proceedings before the Magistrate or failed, or was deprived of the opportunity, to fully present or argue his case. His contention is that the Magistrate made erroneous findings of fact on the evidence before him.
Having reviewed the evidence and the proceedings, and considered Mr Aronis’ submissions on this review, I conclude that the Magistrate’s findings and his judgment should not be disturbed. There was evidence which, if accepted by the Magistrate as being cogent and reliable, supported and justified his judgment. I affirm the judgment.

[2004] SADC 15

29 January 2004