Bennett v Mount Lofty House No. Scciv-02-504

[2002] SASC 186

BENNETT & ANOR  v  MOUNT LOFTY HOUSE
[2002] SASC 186

Magistrates Appeals:  Civil (ex tempore)

1. DOYLE CJ:            The evidence was brief, the Magistrate’s reasons are brief and I do not think that reserving my decision would enable me to be any more precise.

2. The Magistrate found that when the plaintiff entered the freeway ahead of the defendant, he did not cause the defendant any significant embarrassment. Thereafter, both vehicles continued along the freeway in the same direction, the defendant behind the plaintiff.

3. The defendant argues that the Magistrate should have found that the plaintiff’s failure to accelerate meant that the defendant was unable to open up a significant gap between the plaintiff’s vehicle and his vehicle, because the defendant in turn had a large truck close behind him. The defendant collided with the rear of the plaintiff’s vehicle when the plaintiff slowed to avoid some rubbish or debris on the roadway. The collision was some 20 seconds after the plaintiff entered the freeway.

4. The Magistrate found the defendant to be negligent. He found that the defendant was accelerating when the plaintiff entered the freeway. I think that the Magistrate also found, by implication, that the defendant could have slowed more than he did, if he did slow at all, and that he could have increased the gap between the defendant’s vehicle and the plaintiff’s vehicle. I do not get the impression that the Magistrate made a finding that the defendant kept accelerating, I think probably what the Magistrate was intending to find was that the defendant could have slowed more than he did slow, and thus increase the gap.

5. The Magistrate also found that the defendant saw the debris on the road and again by implication, that he did so before the plaintiff saw it. The Magistrate seems to have concluded that the defendant should have begun to slow no later than when he saw the rubbish.

6. All of these findings were open to the Magistrate on the evidence. I can find no basis for interfering with them. It follows that the defendant was negligent in driving too close to the rear of the plaintiff’s vehicle, even though the plaintiff might have entered the freeway closer to the defendant’s vehicle than was desirable. The finding is that from the outset, the defendant should have dropped back, and certainly once he saw the rubbish or debris on the road.

7. On the other hand, I think it is implicit in the Magistrate’s reasons, that the plaintiff entered the freeway closer to the front of the defendant’s vehicle than would be usual or ideal. Although in my opinion there was a basis for the Magistrate to make the findings he made and to conclude that the defendant was negligent, I am unable to agree with the Magistrate’s decision that the plaintiff was not guilty of contributory negligence. However I say at the outset, that I think I consider that the bulk of the responsibility rested with the defendant. The plaintiff should have known that he had entered the freeway not far in front of the defendant’s vehicle. It was the plaintiff who produced that situation.

8. To my mind, taking proper care for his own safety, he should have attempted to ensure that there was a safe distance between the two vehicles. Even though the defendant had the same duty and failed to discharge it, the plaintiff, in the particular circumstances, failed to take proper care for his own safety by failing to do what he could to increase the distance. On the Magistrate’s findings, there should have been a finding of contributory negligence by the plaintiff, but as I have said on the Magistrate’s findings, the bulk of the responsibility must rest with the defendant.  I consider that the plaintiff’s fault was relatively minor.

9. I would assess the degree of contributory negligence at 15 per cent only.  I arrive at that on the basis that on the Magistrate’s findings, the plaintiff did not produce an unsafe situation, but on the other hand had produced a situation which called for either plaintiff or defendant, or as I have found both of them, to take some remedial steps to avoid an unsafe situation developing. The judgment on the claim should be reduced by the appropriate amount, resulting in an entitlement to $4250 inclusive of interest. This is a rounded amount representing a deduction of 15 per cent and interest of approximately $100. The rounding has occurred in the process of adding the interest.

10. I turn to the counterclaim.  On the approach that I have taken, the plaintiff was negligent in entering the freeway as close to the defendant’s vehicle as he did. It was a situation which, as I have said, was not unsafe, but was such as to give rise to a real possibility that an unsafe situation might arise. I consider the plaintiff was negligent in failing to take reasonable measures to alleviate the situation that he had created. The plaintiff’s negligence lies in entering the freeway closer to the front of the defendant’s vehicle than was desirable, and in failing to increase the gap.

11. Usually the gap between two vehicles is the responsibility of the following vehicle, but in this case, the plaintiff had produced a situation in which the gap was not enough. Although it fell to the defendant to deal with this, the plaintiff having created the situation, also had a duty to deal with it. The fact remains that on the Magistrate’s findings, the bulk of the fault lies with the defendant. I would reduce the defendant’s damages by 85 per cent on account of his contributory negligence.

12. Accordingly on the counterclaim, I would award the defendant the sum of $700 which again is a rounded amount, representing 15 per cent of the claim and approximately $100 for interest, the rounding again occurring in the process of adding the amount for interest. Accordingly the balance amount to which the plaintiff is entitled, is $5250 less $700 namely $4550 and I propose to allow the appeal and enter judgment on that basis.

13. The orders of the Court are as follows:

    1.That the appeal be allowed.

    2.Set aside the judgment of the Magistrates Court.

    3.Order that there be substituted a judgment for the plaintiff against the defendant for the balance on the claim and counterclaim of $4550 and costs.

    4.Order that the respondent pay the appellant’s costs of the appeal, fixed at $450 plus disbursements.