Breg v Villablanca - [2011] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
BREG v VILLABLANCA
[2011] SADC 53
Judgment of His Honour Judge Tilmouth
15 April 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT
Decision of Magistrate apportioning liability for a motor vehicle accident 75% in favour of the respondent, varied to 50%, on account of objective facts.
District Court Act 1991 (SA) s 42G(2); Magistrates Court Act 1991 (SA) s 38(4)(c); Braund v Henning (1988) 62 ALJR 433; Knowles v Dubla (1997) 25 MVR 134; Barberien v Hardy [2003] SASC 353, referred to.
Warren v Coombes (1979) 142 CLR 531; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, applied.

BREG v VILLABLANCA
[2011] SADC 53

Cornelius Breg brings an application for the review of a decision of a Magistrate given on 26 October 2010, ordering him to pay $2,564.16 in damages.
The circumstances giving rise to this judgment against him are these. The respondent Robert Villablanca, was driving northwards in his Nissan Terrano 4-wheel drive along the Southern Expressway, some 500 m south of Seacombe Road between 8.00pm and 8.30pm on the evening of 26 February 2009. A vehicle further in front of him left the roadway and rolled over twice. Another vehicle immediately in front driven by Ms Dannials a registered nurse, pulled over to the right in order to render assistance, as did Mr Villablanca. Mr Villablanca was forced to slam on his brakes to avoid hitting her vehicle. The Expressway comprises of three lanes, all traffic flowing in the one direction. Traffic at the time was said to be heavy in all lanes and it was said to be around dusk.[1]
[1] Sunsent occurred at 7.57pm: SA Government Gazette 11 December 2008k, Proof of Sunrise and Sunset Act 1923 (SA)
The appellant drove his Jeep Cherokee behind Mr Villablanca, at about 80 kph, which is the applicable speed limit in the vicinity. Between them there was another vehicle, the closing distance being about 30 to 40 metres. Both were also travelling in the third or far right hand lane of the carriageway. Mr Breg saw the vehicle immediately in front of him swerve to the left to avoid Mr Villablanca’s Terrano. The distance was such that he was unable to avoid rear impact, even though he applied his brakes heavily.
Mr Villablanca brought proceedings for property damage to his vehicle, claimed to be $7,000. Mr Breg filed a defence and counter-claim seeking recompense for damage to his vehicle. This was agreed at $5,450. Two prime issues in contention at the trial and on the appeal, were liability and the measure of damages.
As to liability, the central point of contention was the position in which the respondent left his vehicle stationary, having pulled over. On his case the left rear protruded into the carriageway by no more than about 30 centimetres. The appellant claims it was substantially, although not wholly, in the laneway.
The Magistrate heard evidence from a number of witnesses, including the parties. She reasoned that as Mr Breg obviously felt strongly about the cause of the collision, this may have distorted his recollection of the events “such that he is mistaken on certain issues”.[2] Her Honour proceeded to review photographs tendered on both sides. Although considering all witnesses “did their best to recall the events in an honest and reliable manner”,[3] she concluded that Mr Villablanca was an impressive witness and essentially accepted his version of the events and that of his witnesses, in preference to those called on behalf of the appellant.
[2] Villablanca v Breg 26 October 2010 AMCCI-10-1604 para [12]
[3] Para [12]
After analysing the respective cases both in point of negligence and contributory negligence, she concluded as follows:[4]
[133] ... Only through a momentary lapse in attention, in combination with inadequate distance between the vehicle in front, when travelling at speed, could the actions of the other driver have caused Mr Breg to take the evasive action he felt was necessary. I find that Mr Breg failed to keep a proper lookout.
[14] It was however incumbent on Mr Villablanca, even in heat of the moment, to ensure that he left his vehicle in such a position so as not to create a hazard to other road users, particularly on a road carrying a large volume of traffic at a speed limit of 80 km per hour. There was no reason why Mr Villablanca could not have parked completely off the road. The photographs of the collision scene show adequate space for this to occur …
[15] Having regard to all these matters, I attribute 25 percent of the responsibility for the collision to the plaintiff and 75 percent to the defendant.
There is no identifiable error in these observations and with these findings so far as they go, except potentially in one respect.
[4] At paras [13] &[14]
Photographs of the road surface taken the following day depict parallel rubber skid marks attributable to Mr Breg’s vehicle. They terminate at a point no further than the continuous painted white line close to the right hand (easterly) verge. This is suggestive of impact at a point no less than the right hand margin of the roadway, but nevertheless on the roadway itself, which Mr Breg’s vehicle did not leave.
However, the objective facts take the likely point of impact somewhat further. Photographs of damage to the appellant’s vehicle reveal impact to the right hand bull bar, at least to the far end of the indicator lights, approximately one third across the front. At this point there is a particularly noticeable indentation. The photographs of the corresponding rear damage to the respondent’s vehicle, depict impact damage close to the mid point (approximately 40 per cent of its width) centred between the letters “WC” of the registration plate. Mr Cooper an employee of Alliance, the subrogated insurer of the respondent, fairly conceded this.
Given the appellant’s vehicle did not leave the bitumen surface, it necessarily follows because of the corresponding points of damage, that the respondent’s vehicle must have intruded onto the right line, by at least 40 per cent of its total width. Although the exact dimensions were not proven, on any view of the facts this had to be considerably more than 30 centimetres. In this respect, the Magistrate fell into error in finding the respondents vehicle was no more than 30 centimetres across the oncoming lane. The objective evidence plainly suggests it must have been at least double that and probably more. Of course the court must recognise the advantages enjoyed by the Magistrate who conducted the trial. Even so, an appellate court is in as good a position to decide the proper inferences to be drawn from proven objective facts: Warren v Coombes.[5]
[5] (1979) 142 CLR 531 at 551
The question then is whether it becomes necessary to re-apportion the responsibility any differently than her Honour has done. It can be accepted that even in the pressure of an emergency, the respondent could and should have parked completely off the road as her Honour correctly observed. The photographs show a wide verge more than enough to accommodate the Terrano.
On the other hand, as her Honour also found, the appellant must have experienced a momentary lapse of inattention and he failed to leave an adequate distance between himself and the vehicle immediately in front. Mr Breg was utterly unable to explain why he did not veer to the left to avoid Mr Villablanca’s vehicle, other than to suggest traffic was too heavy to permit him to do so. The fact that the leading vehicle was avoid impact, is some evidence of his capacity to do likewise, even though his Jeep was probably wider. The photographs show there was approximately 25 per cent of the remaining laneway available between the left side skid marks and the left broken line lane, before he would begin to straddle into the centre lane.
The case law demonstrates that drivers of following vehicles colliding with vehicles travelling ahead, are usually held primarily liable: Braund v Henning.[6] This is because the following driver owes a duty to be especially alert to vehicles in front: Knowles v Dubla,[7] and Barberien v Hardy.[8]
[6] (1988) 62 ALJR 433 at 436
[7] (1997) 25 MVR 134
[8] [2003] SASC 353 at [10] & [14]
This case however, is different from the usual “rear end” collision. The respondent created an unnecessary and unreasonable risk of danger by pulling over whilst remaining partly on a heavily used major arterial road of which the maximum speed was 80 kph. An apportionment of responsibility involves an analysis of the respective shares in the responsibility for the damage that results, the degree of departure of each party from the standard of care expected of a reasonable person in the circumstances, as well as the relative importance of the respective acts giving rise to the damage caused in the first place: Podrebersek v Australian Iron & Steel Pty Ltd,[9] and Bankstown Foundry Pty Ltd v Braistina.[10]
[9] (1985) 59 ALJR 492 at 493-494
[10] (1986) 160 CLR 301 at 311
In the result, it was the respondent who created a situation of danger, all the more so because the vehicle was stopped on a busy, heavily used relatively fast moving carriageway, at a time when darkness had commenced to fall. There was some degree of urgency in pulling over but there was no call for him to stop other than completely off the road surface, even in the pressing circumstances.
The appellant’s departure from want of due care is also consequential. He observed quick movement to the left which should have alerted him to danger ahead. Although an unexpected situation was sprung on him, he left too little closing distance to enable him to come to a complete stop before impact, and he also failed to swerve to avoid it. In all the circumstances, the appropriate conclusion is that both parties were equally culpable for this accident and that liability should therefore be apportioned equally as between them each.
This leads to the issue of damages. The appellant Mr Breg contends the respondent’s vehicle was not obviously damaged upon visual inspection afterwards. Closer examination later, revealed unexpected mechanical damage, especially to the gear box. The vehicle had to be towed from the scene. A loss assessor engaged by Alliance considered the combined effect of mechanical and body repairs would exceed the value of $7,000. From an insurance point of view the vehicle was written-off and sold to the third party.
This sale realised $1,954.55, bringing the respondent’s level of damages to $5,045.45, plus towing costs of $314. The appellant himself approached the third party and ascertained the vehicle was for sale at a price of $7,000. Documents submitted by Mr Cooper prove that in the meantime body work was undertaken, costing $3,432 and rebuilding the gearbox cost $2,500, plus parts of $700. This entirely explains a sale price of $7,000. Without going into the detailed arithmetic, the provable damage at the instance of either party, is dollar for dollar practically identical. That being so, the most practical solution is to allow the appeal to the extent that the judgment entered against the appellant for $2,564.16 is set aside.
Mr Breg vehemently maintained there is no proof of damage despite the above considerations. In the end he was forced to allege, without a scintilla of supporting evidence, that the documents submitted by Mr Cooper were forgeries. There is no reason whatsoever to think that this is the situation, or to doubt the evidence given by the loss assessor Mr Basso as to the damage he later detected, or as to the reasons for writing-off the vehicle. His evidence was accepted by the Magistrate.
There is one final consideration. Her Honour accepted the evidence of the respondent that he engaged the hazard lights of his vehicle before impact. Mr Breg vehemently denied this was the situation. Whatever the true facts of the matter might be, it is a neutral consideration. It was not until the vehicle in front swerved that Mr Breg first saw the respondent’s vehicle on the roadway. At that point, for reasons already mentioned, it was too late to avoid impact other than swerving to the left, so whether the hazard lights were operating or not, there was no causal consequence to either case.
Insofar as may be necessary Mr Breg is granted an extension of time in which to apply for review to 29 November 2010 when his notice was filed. The review is allowed to the extent that the judgment in favour of the respondent against the appellant is set aside. There will be no order as to the costs of the appeal: District Court Act 1991 (SA): s 42G(2). Since an offer to settle was advanced in the lower court, the parties are entitled to be heard as to what adjustments should be made if any, as to the awards of costs of $810.50 and of interest of $79 against Mr Breg in the court below.