Aslanidis v Mattiazzo
[2017] SADC 1
•23 December 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ASLANIDIS v MATTIAZZO
[2017] SADC 1
Judgment of His Honour Auxiliary Judge David Smith
23 December 2016
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Review of a judgment in a minor civil action - applicant drove her motor vehicle out of a supermarket car park onto a busy arterial road and into a line of moving vehicles and in doing so failed to give way - a three vehicle chain collision resulted - applicant claimed damages for personal injuries from respondent whose vehicle collided with the rear of her vehicle - Magistrate dismissed action on basis that applicant was solely liable for the chain collision - on review held Magistrate erred in not apportioning some responsibility to the respondent on the basis that he failed to drive 'defensively' - judgment of Magistrate rescinded and substituted therefor is a judgment that the applicant recover 35 per cent of her damages to be assessed.
Magistrates Court Act 1991 ss 36 and 38; Civil Liability Act 1936 (SA) Parts 6 and 7, referred to.
Aslanidis v Mattiazzo Magistrates Court Judgment, 4 July 2016; Lawrence v Sambevski (1997) 189 LSJS 451; Avon v Administrative Appeals Court (1997) 69 SASR 7; Harradine v District Court of South Australia (2012) 280 LSJS 572; Warren v Coombes (1979) 142 CLR 531; TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Roads and Traffic Authority v Royal (2008) 245 ALR 653; Sibley v Kais (1967) 118 CLR 424; Stoeckel v Harpas (1971) 1 SASR 172 (note); Hale v Victorian Railway Commissioners (1953) 87 CLR 529; Robertson v B H MacLachlan Pty Ltd (1985) 58 ALR 668; Bus v Sydney County Council (1989) 167 CLR 78; McLean v Tedman (1984) 155 CLR 306; Johns v Silby [1939] SASR 133; Antonow v Leane (1989) 53 SASR 60; Wyong Shire Council v Shirt (1980) 146 CLR 40; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; Teubner v Humble (1963) 108 CLR 491; Evers v Bennett (1982) 31 SASR 228; Pollard v Ensor [1969] SASR 57; Malek Shahi v Granger [2011] SADC 18, considered.
ASLANIDIS v MATTIAZZO
[2017] SADC 1
This application for review arises from a chain collision, involving three motor vehicles, which occurred on Henley Beach Road at Fulham, at about midday on 5 December 2013. A Commodore sedan, driven by the applicant, collided with the rear of a Toyota Corolla sedan, driven by Ms Chelsea Saint (‘the first collision’). Then a Nissan Pulsar sedan, driven by the respondent, collided with the rear of the applicant’s Commodore (‘the second collision’), thereby propelling it again into the rear of Ms Saint’s vehicle (‘the third collision’). The plaintiff instituted a Minor Civil Action against the defendant, in which she claimed $25,000 for personal injuries which she claimed resulted from his negligent driving. After a trial, on liability only, in a considered judgment dated 4 July 2016, the magistrate dismissed the action, concluding that the plaintiff was wholly responsible for the second collision. It is the second collision which, the applicant claims, caused her injuries.
The plaintiff now applies to review the judgment pursuant to s 38(6) of the Magistrates Court Act 1991. In particular, she seeks rescission of the judgment, and the substitution therefor, of a judgment which apportions at least 50 per cent of the responsibility, for the second collision, to the defendant.
The facts – the Magistrate’s Judgment
I will refer to the plaintiff as ‘the applicant’ and the defendant as ‘the respondent’.
The facts are set out, articulately, in the judgment. So too is the basis upon which the magistrate resolved an issue of credibility and reliability. The magistrate found that the collisions occurred in the sequence I have already set out as above and rejected, as unreliable, the applicant’s evidence as to the sequence which was contrary to that. Instead her Honour preferred the evidence of Ms Chelsea Saint and that of the respondent.
In this review, the parties, wisely, do not challenge the magistrate’s findings of fact or conclusions as to credibility and reliability. The sole issue is, whether the magistrate was correct in concluding that the respondent was not responsible, to any extent, for the second collision.
I set out hereunder the facts as found by the magistrate and her Honour’s conclusions:
I make the following findings on the balance of probabilities:
1. At approximately midday on 5 December 2013, the plaintiff exited the car park of the Foodland supermarket located on Henley Beach Road.
2. The plaintiff indicated her intention to turn right and travel east on Henley Beach Road.
3. At the same time Ms Saint was travelling east along Henley Beach Road in the right lane.
4. The defendant was travelling in his vehicle directly behind Ms Saint.
5. The plaintiff suddenly turned into the right-hand lane where Ms Saint was travelling.
6. Ms Saint swerved to the left to avoid a collision with the plaintiff’s vehicle.
7. Due to the presence of other vehicles in the left-hand lane, Ms Saint was forced to move back into the right-hand lane.
8. The defendant sounded his horn.
9. The plaintiff looked at the defendant and waved her hand in the air and then collided with the rear of Ms Saint’s vehicle (the first collision).
10. The defendant applied his brakes but there was insufficient room to come to a complete stop and his vehicle collided with the rear of the plaintiff’s vehicle (the second collision).
11. The second collision was of less force than the first collision.
I find that the collisions were caused by the plaintiff’s negligence. The plaintiff having entered Henley Beach Road from the supermarket had an obligation to give way to traffic in both directions. The plaintiff failed to give way to Ms Saint’s vehicle, causing Ms Saint to swerve to avoid a collision. The plaintiff then failed to keep a proper lookout whereby she collided with the rear of Ms Saint’s vehicle. The defendant had no reasonable opportunity to avoid the collision with the plaintiff’s vehicle. The defendant had been travelling at a safe distance behind Ms Saint’s vehicle before the plaintiff turned out onto the road, effectively forcing her vehicle in between the defendant’s and Ms Saint’s vehicles. Having regard to the circumstances of the collision, I do not see that any apportionment of liability for contributory negligence can be made against the defendant.
In view of my findings, the plaintiff’s claim must be dismissed.[1]
[1] See Aslanidis v Mattiazzo, Magistrates Court Judgment, 4 July 2016, AMCCI-16-1640.
Before dealing with the arguments about the magistrate’s conclusions I turn to some legal matters.
Nature of application for review
The jurisdiction of the District Court to review a judgment of the Magistrates Court, given in a minor civil action, is conferred by s 38(6) of the Magistrates Court Act 1991. In exercising that jurisdiction, the Court is given a range of powers. (See s 38(7)). It may inform itself, as it thinks fit, and is not bound by the Rules of Evidence. (See s 38(7)(b)). Further, it is empowered to re-hear evidence taken in the Magistrates Court, (see s 38(7)(c)), and may take fresh evidence, if satisfied that such evidence ought to have been adduced before the magistrate.[2] Because, as I have indicated, there is no challenge to the magistrate’s findings of fact or conclusions on credibility and reliability, there is no need, in this review, to rehear evidence or take any further evidence.
[2] See Lawrence v Sambevski (1997) 189 LSJS 451.
Finally, in both the trial in the Magistrates Court and the review, the ‘… court must act in accordance with equity, good conscience and the substantial merits of the case without regard to technicality and legal form’. (See ss 38(1)(f) and (7)(e)). Upon review, the courses open to this court are to affirm the judgment, or rescind it and substitute a judgment that it considers appropriate. (See s 38(7)(d)(i) and (ii)). Any decision, on review, is final and not subject to appeal. (See s 38(8)).
The question, which still remains is, if not an appeal, what constitutes ‘a review’? The dictionary definition of ‘review’ is ‘the act of looking over something with a view to correction or improvement’.[3] The meaning of the word ‘review’, in the legal setting, has been the subject of much judicial consideration over the years.[4]In the case of Avon, Olsson J makes it clear that the meaning of the word ‘review’ is to be derived from its statutory context.[5] Section 38(7)(d) of the said Act provides some of that context. If this Court, upon looking over the matter, decides that an error has been made, it is empowered to correct it.
[3] See the Shorter Oxford Dictionary 3rd Edition 1973.
[4] See Avon v Administrative Appeals Court (1997) 69 SASR 7 at 34 and 35 per Olsson J, and more recently Harradine v District Court of South Australia (2012) 280 LSJS 572 at 581 and 582 per Blue J.
[5] See Avon per Olsson J at 35.
Finally, I consider that the principles applicable to the role of appellate courts, have a guiding application to reviews under s 38(6) of the Magistrates Court Act. The following such principle impacts on this matter.
An appellate court, and it follows, a reviewing court, is: ‘… in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. …’.[6]
[6] See Warren v Coombes (1979) 142 CLR 531 per Gibbs ACJ, Jacobs, Murphy JJ at 551.
Further, and finally, I note that any inference drawn or relied upon must reasonably arise from proven facts or circumstances, as opposed to resulting from a process of speculation.[7]
[7] See TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 per Gibbs J at 349, see also Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 at 733.
The Civil Liability Act
I have had regard to the Civil Liability Act 1936 (SA), and in particular the Negligence provisions in Part 6 and the Contributory Negligence provisions in Part 7. Part 6 does not purport to replace the common law of negligence but rather adopts it. So too, Part 7 does not preclude reliance on the time honoured principles or considerations applicable to apportioning responsibility for negligently inflicted harm, to which I will later refer.
In this case, bearing in mind that damage is the gist of an action in negligence, in order to recover, the applicant must prove, on the balance of probabilities, that the respondent’s neglect caused or materially contributed to the second collision and therefore her injuries. Section 34 of the said Act deals with causation in negligence actions. The prescribed formula does not preclude the application of the usual common law tests. The test appropriate to the circumstances in this case is not, for instance, the ‘but for’ test or the ‘last opportunity’ test but rather what has been called ‘the common sense and experience test’.[8]
[8] See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 and more recently Roads and Traffic Authority v Royal (2008) 245 ALR 653.
Therefore the applicant needs to prove that the respondent was negligent, in that he failed to take sufficient evasive or protective measures, and that such neglectful conduct, as a matter of common sense and experience was a material contributing factor or condition in causing the second collision and thereby – if later proven – also producing her injuries.
The Review
There is no dispute that the applicant was negligent. She drove onto a busy arterial road, and having crossed the dual lane carriageway for westbound traffic, she effectively ‘barged’ into the two lanes of eastbound vehicles. In doing so, she failed to give way to those vehicles and in particular, the vehicle driven by the witness Chelsea Saint. Of course this breach of the traffic law is not the ‘ … be all and end all’ of civil liability.[9] Such a blatant breach does not confer immunity on any embarrassed driver to, as it were, press on regardless. The embarrassed driver is still duty bound to exercise reasonable care.
[9] See Sibley v Kais (1967) 118 CLR 424 at 427.
The submission of the applicant, by her counsel, Mr Warren, is that the respondent, who was following Ms Saint’s vehicle, failed to exercise reasonable care by not driving ‘defensively’ in accordance with the following, often repeated, articulation of that proposition by Wells J in Stoeckel v Harpas:[10]
In cases such as this, a judge sitting alone must be ever conscious of his dual function – to direct himself upon the law, and to make findings of fact as a jury would make them. In fulfilling the role of a tribunal of fact, a judge is required to reflect in his findings the current standards of reasonable conduct that, to the best of his understanding, are set and usually maintained by the community. It is in this way that administration of much of our law is made, and made properly, to conform to the community’s reasonable expectations. Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today’s vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation.
[10] (1971) 1 SASR 172 (note) at 172 and 173.
This obligation to anticipate negligent conduct by others, which is another way of describing defensive driving, is a well-established part of the duty of care owed to others.[11]
[11] See Hale v Victorian Railway Commissioners (1953) 87 CLR 529, Robertson v B H MacLachlan Pty Ltd (1985) 58 ALR 668, Bus v Sydney County Council (1989) 167 CLR 78 at 90, McLean v Tedman (1984) 155 CLR 306 at 311-12.
Counsel Mr Warren submitted that the magistrate erred in concluding ‘… that the defendant had no reasonable opportunity to avoid the collision with the plaintiff’s vehicle …’.[12] In particular, he argued that the respondent had time and space to ‘back off’ but did not do so. He added that the evidence did not support the conclusion that the failure of the respondent, forthwith to brake or slow down, was a forgivable error of judgment, in a situation of emergency created by the applicant - that is an agony of the moment decision, not amounting to negligence.[13]
[12] See Magistrate’s Court Judgment at [23].
[13] See Johns v Silby [1939] SASR 133, see also Antonow v Leane (1989) 53 SASR 60.
I point out immediately that the notion or concept of defensive driving or the obligation to anticipate negligent conduct are not rules of law, but rather are guides to ascertaining whether, in the circumstances of a particular case, a particular driver behaved as a reasonably prudent and competent driver.[14]
[14] See Antonow v Leane, supra.
Counsel for the respondent, Mr Ward, argued that the magistrate’s conclusion, that the respondent was not negligent, was justified by the evidence and that the ‘time and space’ argument was not supported by the evidence.
I turn now to the evidence relevant to these arguments. Apart from referring to some documentary evidence, I will confine my attention to the evidence of the respondent and Ms Saint, on whose evidence, the magistrate relied.
The respondent, in his evidence, described how, upon the lights at the intersection with Tapleys Hill Road turning green, he drove his Nissan Pulsar vehicle off, in an easterly direction, on Henley Beach Road, in the right-hand lane, following behind the Toyota vehicle driven by Ms Chelsea Saint.[15] He said, as he continued east to a position adjacent to the Foodland Supermarket, his Nissan vehicle was positioned two to three car lengths behind Ms Saint’s Toyota and, at that time, the speed of his vehicle would not have reached the limit of 60 km/h.[16] He described what he saw, as his vehicle approached the carpark at the Foodland store, in the following terms:
MR MATTIAZZO: We were in the right-hand lane. There was also two or three cars in the left-hand lane at that intersection as well.
HER HONOUR: Then what happened.
MR MATTIAZZO So the lights went green and I took off as normal. I proceeded behind Chelsea and then we came up to approaching the Foodland carpark exit and I noticed Maria’s vehicle approaching the median strip, you know. Where you stop your car in between, you can get past the cars coming one way and wait for the cars going the next way, and the expectation was, you know, that she’d stop there and give way and wait for the vehicles to pass but there was no stop, no hesitation, just went straight in.[17]
[15] T22.
[16] T24.
[17] T22.
The applicant’s submission, by her counsel, was that the respondent ought not to have assumed that the applicant was going to stop in the middle of Henley Beach Road, and ‘give way’ but rather, he ought to have prepared for the fact that she may not do what she was obliged to do. The submission was that he should thereupon have slowed and braked.
The respondent then described how he reacted to what, contrary to his expectations, then happened:
HER HONOUR: So the expectation was that she would stop.
MR MATTIAZZO: Yes, and give way as is right, and then yeah, she just went straight into the lane causing Chelsea to swerve into the left-hand lane and almost colliding –
…
MR MATTIAZZO: Yeah, Chelsea had to evade and swerve into the next land. Fortunately, I think, the cars in the left-hand lane, the first one at least, was a little bit quicker and so it wasn’t right next to her, so she didn’t collide into that one. Yeah, so Chelsea swerved and then I honked Maria and then Chelsea assumed her position back into the initial lane and slowed down probably due to shock or caution and reacting to my honking her, Maria was looking at me, giving me these ones in the mirror (DEMONSTRATES HAND MOVEMENT).
HER HONOUR: Maria was looking at you.
MR MATTIAZZO: Yeah, I could see her in her rear view mirror.
HER HONOUR: Just so everything get recorded … can you just described that hand movement that you made.
MR MATTIAZZO: One of these, like what’s your problem.
HER HONOUR: Waving hand in the air.
MR MATTIAZZO: Yeah.
HER HONOUR: As if to indicate what is your problem.
MR MATTIAZZO: Yeah, because she realised that she made an error failing to give way.
HER HONOUR: I think you said that you thought she’d realised that she’d made an error.
MR MATTIAZZO: No, she hadn’t. That’s why she was –
HER HONOUR: Not realising that –
MR MATTIAZZO: That’s why she was giving me those ones.
HER HONOUR: Then what happened.
MR MATTIAZZO: Yeah, so while she was focused on me in her rear view mirror then she went into the back of Chelsea.
HER HONOUR: How closely were you following Ms Saint’s vehicle.
MR MATTIAZZO: Just the standard two or three car lengths. We hadn’t accelerated to 60 km/h, the speed limit, by the time Maria had incurred on the lane.
HER HONOUR: You hadn’t got to 60.
MR MATTIAZZO: No, we hadn’t got there yet.
HER HONOUR: When Maria turned out and Chelsea swerved into the left lane and then back into the right –
MR MATTIAZZO: Yeah, so she -
HER HONOUR: Did Maria’s car actually split, come in between you.
MR MATTIAZZO: Yes.
HER HONOUR: Can you just explain how that happened.
MR MATTIAZZO: Yeah. So Chelsea evaded and then eventually went back into our lane but there was an extra car in that space, you know, the standard vehicle length that you would travel behind a car in front of you.
HER HONOUR: And that was Maria’s vehicle.
MR MATTIAZZO: That was Maria’s car. So there was little room to move.
HER HONOUR: So then what happened. You’ve described Maria waving her hand in the air, saying what’s the problem.
MR MATTIAZZO: Yeah, and then she collided and then given the proximity of the vehicles –
HER HONOUR: So she collided into the rear of Ms Saint’s vehicle.[18]
[18] T23-24.
What is notable about this part of the respondent’s evidence, is that he does not indicate that he did other than sound his vehicle’s horn. He does not, for instance, say that he immediately slowed or braked, notwithstanding that the applicant’s vehicle takes up one of the three car spaces between his vehicle and Ms Saint’s vehicle. He later describes how, following the applicant waving her hands about and looking at him in the rear vision mirror, her Commodore vehicle collides with the rear of Ms Saint’s Toyota and then, upon that happening he agrees that he applies his brakes.
MR MATTIAZZO: Yeah, and that was a pretty heavy collision and then, yeah, so I applied my brakes as soon as I noticed what had happened but given the proximity of the vehicles I was unable to stop in time, and it was a light impact.[19]
…
HER HONOUR: Did you hear or see the collision that occurred between Chelsea and Maria’s car.
MR MATTIAZZO: Yeah. I didn’t have time to stop.
HER HONOUR: You said before that you applied your brakes.
MR MATTIAZZO: Yeah.
HER HONOUR: So then what did that cause your car to do.
MR MATTIAZZO: I slowed down and it drastically minimised the impact of my collision, yeah.
HER HONOUR: So did the brakes lock up.
MR MATTIAZZO: No, the brakes worked fine but there was just no room to stop because, you know, it happened quickly and there was the extra car in a space where there shouldn’t have been.[20]
[19] T25.
[20] T27.
At pages 27 and 28 the applicant, in cross examination, put to the respondent that he was speeding and failed to slow down and avoid the collision. The following exchange took place:
HER HONOUR: Did you hear or see the collision that occurred between Chelsea and Maria’s car.
MR MATTIAZZO: Yeah. I didn’t have time to stop.
HER HONOUR: You said before that you applied your brakes.
MR MATTIAZZO: Yeah.
HER HONOUR: So then what did that cause your car to do.
MR MATTIAZZO: I slowed down and it drastically minimised the impact of my collision, yeah.
HER HONOUR: So did the brakes lock up.
MR MATTIAZZO: No, the brakes worked fine but there was just no room to stop because, you know, it happened quickly and there was the extra car in a space where there shouldn’t have been.[21]
…
MS ASLANIDIS: Okay. Well, I say that you had to slow down, you had to see what was in front and then basically slow down and avoid this collision. You saw what happened in front, you could have avoided the accident.
MR MATTIAZZO: Your car was in between my car and Chelsea’s car where it shouldn’t have been. Because of that the cars were very close together.[22]
[21] T27.
[22] T28.
I infer from all the respondent’s evidence that he first applied his brakes when the applicant’s Commodore collided with the rear of Ms Saint’s Toyota Corolla.
Ms Chelsea Saint in her evidence described driving on Henley Beach Road through the intersection with Tapleys Hill Road with the green light in her favour. She said she headed east towards the city, on Henley Beach Road in the right hand lane of the two lanes for eastbound traffic, at about 50 to 60 km/h.[23] Her description of the applicant driving her Commodore, from the Foodland carpark exit into her laneway, is in much the same terms as the respondent.[24] In particular, she described the applicant’s Commodore almost ‘side swiping’ her Toyota and forcing her into the left lane.[25] Ms Saint then described how she resumed a position in the right hand lane in front of the applicant’s Commodore which was then in the right lane.[26] Ms Saint accepted, that just before the first collision, which occurred when the front of the Commodore struck the rear of her Toyota, she may have slowed down.[27] She estimated that ‘only a couple of seconds’ elapsed, between the applicant’s Commodore entering her lane, and the first collision.[28] She described this first collision as ‘quite a hefty bang’.[29] She said that she then felt a second collision which was ‘only minute’.[30] I assume this second collision resulted from the rear of her vehicle being struck again by the applicant’s Commodore, following the Commodore being hit from behind by the respondent’s Nissan. Ms Saint said that the time which elapsed between the first and second impacts was ‘… probably eight seconds, 10 seconds, eight, yeah’.[31]
[23] T35.
[24] T32, 33.
[25] T32, 33.
[26] T35, 37 and 39.
[27] T35, 37.
[28] T39.
[29] T34.
[30] T34.
[31] T34.
I now turn to one more item of evidence which counsel for the applicant, Mr Warren, described as the only truly piece of independent evidence.
A representative of the respondent’s insurer attended the scene of the accident and, inter alia, drew a series of plans of the scene upon consultation with the respondent. The plans were not to scale. The plans, including Plan E, and photographs were placed before the Magistrate by consent. Plan E indicates that the distance from a point adjacent to the exit of the carpark of the Foodland store to the first collision was 128.5 metres. I conclude that Plan E together with photographs show that the respondent’s vehicle travelled a distance of approximately 120 metres, from the place where the applicant’s vehicle intruded onto the northern carriageway of Henley Beach Road, to the place of the second collision. At, say, 50 km/h, as a matter of basic physics, it would have taken approximately eight seconds for the respondent to drive over that distance and collide with the rear of the applicant’s vehicle. That equation is not inconsistent with Ms Saint’s evidence of the time which elapsed between the first and second collisions. This evidence provides an indication of how long the respondent had to take, what counsel Mr Warren rightly characterised, as defensive or protective measures.
The respondent, of course, owed a duty of care to, even a careless road user, such as the applicant.[32] I consider that the respondent breached that duty of care. He assumed, wrongly as it turned out, that the applicant was not going to force her way into the line of traffic. Most often, but not always, he would have been correct. Justice Wells in Stoeckel v Harpas (supra) warned against doing just that. I take the view that a reasonable driver, in that situation, would not have made such an assumption. Having made the wrong assumption, and thereby taking the risk, the respondent compounded that by not braking and, as it were, ‘backing off’ once he realised that the applicant was not ‘giving way’. Rather, he honked his horn. In my assessment, bearing in mind the matters I have alluded to in the evidence, and the documents, he had ‘time and space’ to brake and thereby avoid colliding with the rear of the applicant’s Commodore, yet he did not do so.
[32] See Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 44.
I conclude therefore, that contrary to the robust view of her Honour, the respondent was negligent in that he breached the duty of care which he owed to the applicant.[33] Indeed, may I suggest that there would not be many rear end vehicle collisions in which the driver of the car, which collided with the rear of another, would ever totally escape sharing some responsibility.
[33] See Wyong Shire Council v Shirt, supra, per Mason J at 47-48.
I am satisfied that the respondent’s failure to take defensive action was negligent and was a material contributing cause of the second collision in accordance with the causation test laid down in March v Stramare (supra). It remains for the applicant to prove in the assessment of damages that injuries resulted from the second collision and of course any compensation will be subject to reduction for her contributory negligence.
I now turn to the question of apportionment.
The guiding principles as to apportionment of responsibility amongst those who are found to be negligent are clear.
In Podrebersek v Australian Iron & Steel Pty Ltd,[34] the High Court set out the considerations relevant to apportioning responsibility for an accident such as occurred in this case. The Court said:
The making of an apportionment as between a plaintiff and a defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.[35]
[34] (1985) 59 ALR 529 at 532-33.
[35] See also Teubner v Humble (1963) 108 CLR 491 at 499 per Dixon CJ, Evers v Bennett (1982) 31 SASR 228 at 229 per King CJ, Pollard v Ensor [1969] SASR 57 per Bray CJ at 60, Malek Shahi v Granger [2011] SADC 18 per Soulio J.
The respective departures from the appropriate standard of care by both the applicant and the respondent have already been canvassed by me. The exercise is essentially a comparison of respective culpabilities.
The applicant was, as she now accepts, seriously careless. She drove into the stream of city bound traffic, on a main road, in blatant breach of her obligation to ‘give way’. On the other hand, the respondent failed to react in a timely fashion to what unfolded in front of him and, instead of braking, he merely honked his horn at the applicant. In my view the evidence shows that he had the time and space to avoid driving his vehicle into the rear of the applicant’s vehicle. He did not take advantage of that opportunity when it arose and then when the first collision occurred it was too late.
I apportion responsibility 65 per cent against the applicant and 35 per cent against the respondent.
Final orders
Pursuant to s 36(7)(d)(ii) of the Magistrates Court Act 1991, I rescind the decision of the Magistrates Court dated 4 July 2016 and substitute therefore my decision that the applicant is entitled to 35 per cent of her damages to be assessed.
I will hear counsel as to the precise terms of the judgment and order made by me and also as to the question of costs.
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