Burgess v Legg - [2023] WADC 5

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BURGESS -v- LEGG [2023] WADC 5
CORAM:   LEVY DCJ
HEARD:   10 OCTOBER 2022
DELIVERED          :   23 JANUARY 2023
FILE NO/S:   APP 40 of 2022
BETWEEN:   KELLY BURGESS
Appellant
AND
JOHN LEGG
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SCUTT
File Number            :   PER/GCLM/7330/2020

Catchwords:

Appeal from Magistrates Court - Negligence - Sudden incapacitating event - Whether respondent breached his duty of care to appellant - Onus and standard of proof - Duty of Magistrate to give reasons - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA)
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)

Result:

Appeal allowed
Magistrate's decision set aside
Judgment in favour of the appellant in the sum of $14,065

Representation:

Counsel:

Appellant	:	Mr D M G Burton
Respondent	:	In person (via audio-link)

Solicitors:

Appellant	:	McCabes
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Auro Pty Ltd v Drage [2020] WADC 24
Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dowsing v Goodwin (1997) 27 MVR 43
Jockel v Jockel [1963] SR (NSW) 230
Knott v Royal Exchange Assurance (1955) S.A.S.R 33
Leahy v Beaumont (1981) 27 SASR 290
Manonai v Burns [2011] WASCA 165
Roberts v Ramsbottom [1980] 1 WLR 823
Robinson v Glover [1952] NZLR 659
Stoeckel v Harpas (1971) 1 SASR 172
Van der Velde v Halloran [2011] WASCA 252
Velez Pty Ltd v Tudor [2011] WASCA 218
Waugh v James Allen Ltd [1964] 2 Lloyd's Rep 1
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

LEVY DCJ:

This is an appeal brought by Kelly Burgess (the appellant) against the decision of Magistrate Scutt dismissing his general procedure claim brought against John Legg (the respondent).
The appellant's claim was for loss and damage caused to his motor vehicle arising from a collision with a vehicle driven by the respondent on 25 February 2020.
Neither the fact that there was a collision between the vehicles driven by the appellant and the respondent, nor the quantum of damages (agreed at $14,065) was in dispute. Nor was there any dispute that the respondent owed a duty of care to the appellant. The primary issue in dispute was whether the appellant could prove that the respondent was negligent in his driving of the motor vehicle and therefore liable to pay the damages claimed by the appellant.

The respondent's participation in the appeal

The appellant was represented by counsel at the hearing, as well as (different) counsel on the appeal. The respondent was unrepresented at both the hearing before the learned Magistrate and on the appeal.
On the day scheduled for the hearing of the appeal, before commencing to hear from the appellant's counsel, I caused enquiries to be made with the respondent who did not appear. These enquiries were made to ascertain whether he had intended to take part in the appeal.
Ultimately, the appeal hearing proceeded at about 11.50 am with the appellant's counsel in court and the respondent via telephone audio‑link.
It is necessary to set out some of the procedural history of this matter.
I am satisfied that on 21 June 2022 the appellant caused the respondent to be served with the following documents relevant to the appeal:[1]
•Appeal Notice dated 20 June 2022; and
•Form 8 - Notice of Respondent's Intention.
[1] Affidavit of Service of Andrew Kosta sworn 24 June 2022,
The respondent does not dispute that he was served with the Appeal Notice,[2] but said that he misunderstood its effect.[3] The respondent did not file a Notice of Intention, as required by the District Court Rules 2005 (WA) (DCR) if he intended to take part in the appeal or be a party to it.[4]
[2] Respondent, ts 4.
[3] Respondent, ts 4.
[4] DCR r 53(2) and r 53(6).
Consequently, the appellant submitted that the respondent had no right of appearance on the hearing of the appeal.[5]
[5] Appellant's counsel, ts 3.
Although the respondent did not file a Notice of Intention, it is relevant to note that on 2 August 2022 the matter was listed for a mention of the appeal hearing. On that date, Registrar Kubacz made orders consistent with a Minute of Proposed Orders filed by the appellant on 28 July 2022. Relevantly, those orders included:
1.the appeal be listed for a 1 day hearing before a Judge on 10 October 2022 at 10:30am;
2.the Appellant have leave to file and serve an amended Appeal Notice by no later than 1 September 2022;
3.by no less than 7 days before the hearing of the appeal, the Appellant is to file and serve an appeal book and submissions;
…
On 20 September 2022, the appellant filed an Amended Appeal Notice.
The appellant did not serve the respondent with the Amended Appeal Notice. Nor did the appellant serve the respondent with an appeal book or submissions.
The respondent acknowledged that he had received, via email, a notice from the District Court of Western Australia informing him of the hearing.[6] At that time he understood that he was not required to attend the hearing. He believed that the appeal was concerned with 'the judgment that the Magistrate had given on the issues',[7] and did not concern him, or require, his input.
[6] Respondent, ts 4.
[7] Respondent, ts 5.
On 10 October 2022, between about midday and 1.30 pm, I adjourned the appeal hearing before me to enable the respondent to be provided with the following documents via email:
•Appellant's Amended Notice of Appeal filed 20 September 2022;
•Appellant's Outline of Submissions dated 3 October 2022;
•Appeal Book.
On the resumption of the appeal hearing, the appellant submitted that, since the respondent had failed to file a Notice of Intention within 21 days of being served as required,[8] he was not entitled to take part in the appeal.[9] The appellant also submitted that the respondent, although unrepresented, was a man familiar with court processes having been a police officer in Western Australia and elsewhere.
[8] DCR r 53(2).
[9] DCR, r 53(6).
The respondent's application to participate in the appeal was dealt with essentially as an extension of time to file a Notice of Intention to participate in the appeal. The respondent submitted that whilst the original grounds of appeal 'did not seem to concern [him] in any way because they were all legal points against the Magistrate', the amended notice of appeal was 'so much different'[10] and he now believed it warranted his involvement on the appeal.
[10] Respondent's evidence at hearing below, ts 10.
Ordinarily, some leeway should be given to an unrepresented party who has no legal training. Furthermore, the respondent was successful in the court below. Since the grounds of appeal now sought to be advanced by the appellant were different to those that were originally relied upon, and notwithstanding the effect of DCR r 53(6), it was in the interests of justice that the respondent be given leave to participate in the appeal. Leave was duly given.
Although the respondent had initially indicated that, if he were given leave to participate in the appeal, he might apply to adjourn the appeal, ultimately no such application was made by him. The respondent was given leave to make submissions in response to the appellant's submissions and ultimately did so.
In essence, the respondent's submissions on the appeal were to the effect that he had not breached his duty of care to the appellant in the circumstances of the case and that the learned Magistrate was correct to dismiss the appellant's claim against him. Nothing new was advanced by the respondent on the hearing of the appeal.

Summary of the appellant's grounds of appeal

The appellant contends that the learned Magistrate made three appealable errors. First, that the learned Magistrate reversed the onus of proof. Secondly, that on the findings of fact made by the learned Magistrate, the only reasonable inference to be drawn was that the respondent breached the duty of care he owed to the appellant to exercise reasonable care, applying s 5B of the Civil Liability Act 2002 (WA) (CLA) and common law principles as enunciated in cases such as Wyong Shire Council v Shirt.[11] Thirdly, the learned Magistrate erred by failing to give adequate reasons for her decision, particularly with respect to the provisions of s 5B as to breach and s 5C of the CLA as to causation.
[11] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

The relevant statutory provisions governing the appeal

The appellant, a party to the case (not being a 'minor case') before the learned Magistrate below, has the right to appeal to the District Court against the learned Magistrate's decision.[12]
[12] Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 40(1)(b).
The appeal must be conducted in accordance with the rules of court made by the District Court (DCR).[13]
[13] MCCPA s 40(4A).
The appeal is by way of rehearing and, subject to leave being granted by the District Court to admit other evidence in exceptional circumstances,[14] it must be decided on the evidence that was before the Magistrates Court.[15]
[14] MCCPA s 40(5).
[15] MCCPA s 40(4)(a).
Since no application was made to admit any new or fresh evidence on the appeal, the appeal must be determined upon the material and evidence that was available to the court below.[16]
[16] MCCPA s 40(4)(a).
As the appeal is by way of a re-hearing, it is necessary for the appellant to demonstrate error in the court below.[17]
[17] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission[2000] HCA 47; (2000) 203 CLR 194 [14].
Consequently, the powers of the District Court on an appeal are only enlivened if the appellant demonstrates that the original decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[18]
[18] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
If an error is demonstrated by the appellant, the District Court may make any of the following orders:[19]
(a)confirm, vary or set aside all or a part of the Magistrate Court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
(c)order a new hearing in, or trial of, the case to be held in the Magistrates Court;
(d)order the Magistrates Court to enter judgment in favour of a party;
(e)make an order as to the costs of the appeal and as to the costs in the Magistrates Court and, in an appeal to the Court of Appeal, as to the costs in the District Court;
(f)make any orders that are necessary as a result of other orders it has made.
[19] MCCPA s 43(7)(a) - s 43(7)(f).

The proceedings before the learned Magistrate

The hearing proceeded before the learned Magistrate on 18 May 2022. The evidence before the learned Magistrate comprised the Statements of Intended Evidence tendered on behalf of both the appellant and respondent (Exhibits 1 and 4 respectively), both of whom were cross‑examined at the trial below, as well as various exhibits tendered during the hearing.
The exhibits included:
•The appellant's Statement of Intended Evidence which attached three photographs of St Albans Road on the approach to the bend in the road where it becomes Folly Road, as well as a satellite photo of Folly Road and St Albans Road in Baldivis (Exhibit 1).
•A USB containing video footage taken near the collision site shortly after the vehicles collided (Exhibit 2).
•A bundle comprising:
(a)five photographs of the appellant's vehicle taken after the collision;
(b)five photographs of the respondent's vehicle taken after the accident;
(c)a photo of Folly Road showing skid marks on the road;
(d)a Google Maps photo of Folly Road;
(Exhibit 3).
•The respondent's Statement of Intended Evidence which attached a photograph of the respondent and a copy of his driving licence issued in 1969 (Exhibit 4).
•A bundle of three photos of Folly Road on the approach to St Albans Road (Exhibit 5).
•A photo of Folly Road showing skid marks on the road (Exhibit 6).
•A satellite photo of Folly Road and St Albans Road in Baldivis (Exhibit 7).

Folly Road and St Albans Road in Baldivis

The general area in which the collision occurred is semi-rural. St Albans Road is a single carriageway. There is a single lane in each direction allowing vehicles to travel north or south along the carriageway. The side of the road comprises grass and gravel. There are paddocks on each side of the road with numerous trees.
At the end of the southern section of St Albans Road there is a sharp bend in the road to the right (the bend). The road at that point becomes Folly Road.
Folly Road is also a single carriageway with single lanes travelling east and west. It too is bounded by grass and gravel with treed paddocks on each side of the road. There are gravel driveways leading into properties along the road. Obviously, approaching the bend from Folly Road, the bend in the road turns sharply to the left.
At the bend in the road, and for short stretches on both approaches to the bend, the lanes are separated by two solid and continuous white lines prohibiting vehicles from overtaking.
The approaches to the bend from both Folly Road and St Albans Road have yellow signs on the side of the road warning of the sharp bend and have a signposted recommended speed of 25 km per hour.

The appellant's case

At approximately 8.30 am on 25 February 2020 he was driving his motor vehicle, a 2011 Jeep Grand Cherokee (the Jeep) in a southerly direction along St Albans Road in Baldivis. The speed limit along St Albans Road in that area is 80 km per hour. The appellant was travelling between 70 and 80 km an hour at the relevant time. The appellant, who has held a driver's licence for approximately 40 years, was very familiar with that stretch of road. In the preceding 12‑month period, he drove on it two or three times a week.
As the appellant approached the bend, he slowed his vehicle to 20 km per hour.[20]
[20] Appellant's Statement of Intended Evidence, par 9.
As the appellant negotiated the bend from St Albans Road, he saw the vehicle driven by the respondent 'travelling in the northbound [sic] lane'.[21] He formed the view that the respondent's vehicle was 'travelling very fast'.[22]
[21] Appellant's Statement of Intended Evidence, par 10. However, given the layout of Folly Road, the respondent must have been travelling in an eastbound direction along Folly Road as he approached the bend.
[22] Appellant's Statement of Intended Evidence, par 11.
As the respondent's vehicle approached the bend, the appellant saw the wheels on the respondent's vehicle 'had locked up and there was smoke coming from the tyres' of the vehicle.[23]
[23] Appellant's Statement of Intended Evidence, par 12.
The appellant applied the brakes to his vehicle, but the respondent's vehicle crashed into the front passenger side of his vehicle.[24]
[24] Appellant's Statement of Intended Evidence, par 13.
There was a period of between one and two seconds between seeing the respondent's vehicle and the collision occurring.[25]
[25] ts 18 and ts 19.
The collision between the two vehicles 'occurred on the apex of the corner' between St Albans Road and Folly Road.[26]
[26] ts 17.
The respondent's vehicle left skid marks on Folly Road.[27]
[27] ts 17.
Both vehicles were extensively damaged in the collision.[28]
[28]See Exhibit 3 - Various photographs of both vehicles, taken after the collision, and showing the damage to the left-hand side of the respondent's vehicle and the front left-hand side of the appellant's vehicle.
Apart from his direct evidence, the appellant also relied upon surrounding circumstantial evidence to prove that shortly before the collision the respondent's vehicle was travelling 'very fast'. In this regard, the appellant pointed to his evidence that, immediately before the collision, the respondent's vehicle was under heavy braking causing the tyres to smoke. In addition, the appellant pointed to the final resting position of the two vehicles, particularly the position of the respondent's vehicle, which was ultimately located well off the road surface past a black and white directional sign to the southeast of the bend.
The appellant contends that this circumstantial evidence supports a conclusion that the impact occurred on the apex of the bend, not at some point along Folly Road before the bend.
The appellant also suggested that the speed and force of the respondent's vehicle, even after impacting with the appellant's vehicle, was such that it continued into and damaged the black and white directional sign positioned on the end of the bend and then travelled some metres before coming to a stop.[29]
[29] ts 48 - ts 50.

The respondent's case

The respondent had held a motorcycle licence since 1963, and a motor vehicle driver's licence since 1969. He had previously been a police officer in both England and Queensland.[30] He had extensive driving experience, including as a professional driver in Australia driving trucks and a private taxi.[31]
[30] Exhibit 4.
[31] Exhibit 4.
At about 8.25 am on the day of the collision, he was driving his Mercedes Benz 450SL (the Mercedes). He was affected by the 'rising sun [which] made a sudden and unexpected appearance'[32] through a gap between trees as he drove in an easterly direction along Folly Road.[33]
[32] Respondent's Statement of Intended Evidence, par 2.
[33] The respondent tendered three photographs of Folly Road on the approach to the bend including one marked 'X' indicating where the sun appeared between the trees (Exhibit 5).
The respondent's version, as set out in his Intended Statement of Evidence,[34] was that he was travelling at 70 km per hour as he drove in an easterly direction towards the bend. The speed limit here was 80 km per hour. From Folly Road, the bend is to the left and it becomes St Albans Road.
[34] Exhibit 4 - Respondent's Statement of Intended Evidence.
The respondent said that at a point before he reached the sign warning of the bend and recommending a speed of 25km per hour, he was 'suddenly blinded by a massive light which he later identified as the rising sun making an appearance between two trees. [He] immediately applied [his] brakes (which left skid marks on the tarmac) and unknowingly drifted onto the wrong side of the road. Almost at the same time, [he] became aware of a vehicle coming directly towards [him], out of the sun it seemed. [He] could see nothing to [his] left, but thanks to fairly wide peripheral vision, [he] could see the verge on the other side of the road. [He] immediately headed for this'.[35]
[35] Exhibit 4, par 5.
According to the respondent, as he headed towards the verge on the other side of the road, so did the appellant's vehicle. Upon initial impact, the left front of the appellant's vehicle collided with the left front of the respondent's vehicle and then the side of the respondent's vehicle.
The respondent said that at no time was he driving fast, had no real control over the unexpected circumstances, and did everything he could in the limited time available to avoid the collision.[36]
[36] Exhibit 4, par 5.
The respondent said that he received driver training whilst he had been employed as a police officer in England. He had reacted in accordance with his professional training, namely, to immediately head to a place of safety which in this case was the verge on the wrong side of the road. He did that because the sun was blinding him, and he could not see to his left. Consequently, he formed the view that the only safe place was the verge on the other side of the road.[37]
[37] ts 31.

The respondent claimed that he successfully took evasive action and that the collision occurred when his vehicle had actually left the road surface and was on the shoulder or verge of the road, albeit on the wrong side of the road. Furthermore, according to the respondent, the collision occurred on Folly Road, not the bend. In other words, both vehicles were off the road at the point of impact and were relevantly either travelling east or west along Folly Road.[38]
[38] ts 31.
On the respondent's version, the collision occurred before the respondent entered the bend and after the appellant had negotiated it.
Essentially, the respondent suggested that like him, the appellant had also taken evasive action to avoid the collision but had failed to do so.
Notably, when the respondent was cross-examined by counsel for the appellant at the hearing below, he was asked to mark a satellite map to show the various points along Folly Road that he claimed events occurred. He subsequently marked the map to show:[39]
•the point at which the sun first hit his eyes ('1');
•the point on Folly Road when he first noticed the appellant's car ('2');
•the point of collision, which he said occurred on Folly Road ('3'); and
•where his vehicle came to rest following the collision ('4').
[39] See Exhibit 7.
The respondent was also shown a still photo of the bend (Exhibit 6), taken from the video footage recorded shortly after the collision (Exhibit 2), which counsel for the appellant at the hearing below suggested revealed the tyre skid marks left by the respondent's vehicle on the approach to the bend. Counsel for the appellant put to the respondent that these marks were consistent with the position of the Mercedes after the collision. The respondent disputed that these were skid marks, let alone skid marks from his vehicle.[40] The respondent said that the skid marks his vehicle caused on the road were left on the surface of Folly Road before the warning sign on the approach to the bend.
[40] ts 41.
Despite his denials, it is of note that in cross-examining the appellant, the respondent put to him that 'there were skid marks on the road caused by [the respondent's] tyres about 40 metres into Folly Road'.[41] The appellant agreed with this proposition.[42] Furthermore, the respondent told the learned Magistrate that he had had measured the skid marks and they were 'at least 40 (metres) inside Folly Road'.[43]
[41] ts 17.
[42] ts 17.
[43] ts 17.
Notably, in his evidence at the hearing, the respondent said that he never actually saw the warning sign alerting road users to the approaching sharp bend and recommended speed limit of 25 km per hour.[44] He said his vision was impaired by the sun before he reached the warning sign.[45]
[44] ts 34 and ts 58.
[45] ts 57.
When pressed by counsel for the appellant about where on Folly Road the respondent claimed the collision occurred, the respondent said he did not know how far from the bend the accident occurred but accepted that he had previously said the collision occurred about 150 metres from the bend.[46] This was obviously inconsistent with his evidence in court.
[46] ts 46.
The respondent was not only argumentative during cross‑examination, but insistent that he was not qualified to give any estimate of distances by sight.[47] This was despite the fact that on his own evidence he had 'measured out enough traffic collision scenes earlier in [his] career [as a police officer]'.[48]
[47] ts 45.
[48] ts 45.

Where the collision occurred

As already noted above, there was significant difference between the appellant's version and the respondent's account of where the collision between the two vehicles occurred.
The appellant's case was that the collision occurred on the apex of the bend that separated Folly Road from St Albans Road.
The respondent's case was that the collision occurred on Folly Road, after the appellant had negotiated 'the bend and was heading west along Folly Rd'.[49]
[49] ts 59, respondent.
Although there was a dispute as to where the collision between the two vehicles occurred, there was no dispute that at the time of the collision the respondent was on the wrong side of the road.[50]
[50] ts 59, respondent.

The legal principles - duty of care and whether the duty has been breached

The principles governing a claim brought by a party in negligence involving a collision between two motor vehicles are derived from both the common law and the CLA and are well settled. The relevant sections of the CLA that apply to such circumstances, and relevantly to this case where it is alleged that the respondent breached his 'duty of care' to the appellant, are s 5B and s 5C.[51]
[51] Since the respondent did not allege any contributory negligence on the part of the appellant, s 5K has no application to this case.
The onus of proof lay with the appellant (as the plaintiff in the proceedings below) to establish that the respondent (the defendant in the proceedings below) was negligent. The standard of proof is on the balance of probabilities.[52]
[52] CLA s 5D.
In Wyong Shire Council v Shirt at [47], Mason J noted that there are two steps required to prove that a duty of care has been breached. First, it must be established that 'a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff'. Secondly, if that has been established, whether that duty of care has been breached requires a court to determine whether what the defendant did, or in some cases failed to do, was 'what a reasonable man would do by way of response to the risk'.
In this case, the respondent claims that the blinding impact of the rising sun caused him to be immediately incapacitated but, nonetheless what he did, namely taking immediate steps to pull to the side of the road as best he could, was what a reasonable driver in his position would have done and therefore he did not breach his duty of care.
In Dowsing v Goodwin,[53] Mason P, in summarising the law relating to negligence and sudden incapacitating acts, including those relevant to the present case, noted the following points:
•A plea of 'inevitable accident' by a defendant equates to a denial of negligence;[54]
•A sudden and unheralded incapacitating event may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident;[55]
•Due allowance should be made for a sudden and unheralded incapacitating event, but not too much, since ordinarily 'the reasonable driver is aware of the potential risk of the activity and may be expected to drive "defensively" in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect';[56]
•Where a sudden disabling event occurs, a reasonable driver will still 'be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible'.[57]
[53] Dowsing v Goodwin (1997) 27 MVR 43, 45 - 46.
[54] Jockel v Jockel [1963] SR (NSW) 230, 233.
[55] Billy Higgs & Sons Ltd v Baddeley [1950] NZLR 605; Robinson v Glover [1952] NZLR 659; Waugh v James Allen Ltd [1964] 2 Lloyd's Rep 1.
[56] Stoeckel v Harpas (1971) 1 SASR 172.
[57] Roberts v Ramsbottom [1980] 1 WLR 823, 832; Leahy v Beaumont (1981) 27 SASR 290.

The appellant's grounds of appeal

As already noted at [21] above, there are three grounds of appeal.[58]

Ground 1 - the reversal of the onus of proof

[58] Amended Appeal Notice filed 22 September 2022 which added grounds and abandoned grounds 2, 3 and 4 as originally pleaded.

Ground 1 alleges that the learned Magistrate erred in law by reversing the burden of proof and, consequently, found that the appellant 'had not proven that the respondent had sufficient time to brake so as to avoid colliding with the appellant's vehicle'.[59] The appellant contends that the 'onus was, at all times, on the respondent to prove that he did not have sufficient time to brake so as to avoid colliding with the Appellant's vehicle'.[60]

Did the learned Magistrate err by reversing the onus of proof?

[59] Ground 1 of the Amended Appeal Notice.

[60] Ground 1 of the Amended Appeal Notice.

The appellant contends that the learned Magistrate erred by reversing the onus of proof by finding that the appellant 'had not proven that the respondent had sufficient time to brake so as to avoid colliding with the appellant's vehicle'. In the circumstances, the appellant contends that the onus lay with the respondent to prove the contrary.[61]
[61] Ground 1 of the Amended Appeal Notice.
Somewhat confusingly, in his written submissions, the appellant submits that 'the Learned Magistrate erroneously placed the burden of proof on the appellant to prove the respondent's defence'.[62] Obviously, if the appellant proved the respondent's defence his claim would be dismissed.
[62] Appellant's Outline of Submissions, par 28.
Significantly, in dismissing the appellant's claim, the learned Magistrate said as follows:[63]
In the absence of evidence that [the respondent] must have been able to see or know about the changed road conditions from straight road to an approaching sharp bend and the expected stopping distance of a car travelling at 70 kilometres (sic) from the point where an ability to see was lost and the distance between the loss of ability to see and the point of collision, I'm not satisfied that [the appellant] has proved that [the respondent] failed in his duty to exercise reasonable care to avoid the collision.
Put another way, it has not been proved that it was more likely than not that [the respondent] must have done something more than breaking heavily while blinded by an event out of his control. And in those circumstances, the claim is not proved.
[63] Learned Magistrate's reasons, ts 11 – ts 12, 31 May 2022.
Fundamentally, the law of negligence in Australia, based upon the fault principle, requires that the plaintiff bears the onus of proof.[64] Thus, the onus of proving that the respondent was negligent always lay with the respondent. The learned Magistrate correctly noted that the respondent bore the onus of proof on the standard of the balance of probabilities.[65]
[64] Dowsing and Goodwin (45) (Mason P).
[65] Learned Magistrate's reasons, ts 3, 31 May 2022.
As discussed in more detail in relation to Ground 5 below, the learned Magistrate was satisfied that the respondent was blinded by the sun but was unable to determine at which point prior to the collision that occurred.
As her Honour noted, ordinarily, where such as in this case a driver drifts onto the wrong side of the road thereby creating a danger that results in a collision, would prima facie be in breach of their duty of care to another driver.[66] Thus, whilst the appellant bore the onus of proving negligence, he was not required to prove exactly where the incapacitating event occurred.
[66] Learned Magistrate's reasons, ts 11, 31 May 2022.
In these circumstances, the evidence as outlined by the learned Magistrate was sufficient to prove negligence unless the explanation advance by the respondent was of sufficient weight that it displaced the prima facie finding of negligence. Therefore, there was an evidentiary onus on the respondent to establish that the incapacitating event was such that it displaced what otherwise would have been a breach of his duty of care to the appellant.
Whilst it is obvious that, by the learned Magistrate's findings, her Honour was unable to determine precisely where the respondent was blinded by the sun before reaching the warning sign. However, that did not mean that what would otherwise have been a breach of the respondent's duty of care to the appellant was therefore displaced.
The mere fact that there was an incapacitating event neither proves nor disproves negligence.[67] The evidence raised by the respondent in defence of the claim in negligence was simply part of the overall evidence to be considered in determining whether or not the respondent was in fact negligent.
[67] See for example Knott v Royal Exchange Assurance (1955) S.A.S.R 33, 89 (Reed J).
For the reasons explained in relation to Ground 5 below, in circumstances where the respondent failed to displace what was prima facie negligent conduct, the learned Magistrate was bound to find that the appellant had proved his claim against the respondent.
Ultimately however, the learned Magistrate was not satisfied the appellant had proved that the respondent failed in his duty to exercise reasonable care to avoid the collision.[68] This was no more than saying that the appellant, had not proved on the balance of probabilities that the respondent was negligent. This was a correct statement of the law, albeit an erroneous conclusion on the facts.
[68] Learned Magistrate's reasons for decision, ts 12, 31 May 2022.
Ground 1, standing alone, must fail.

Conclusion in relation to Ground 1

I am not satisfied that Ground 1 has been established by the appellant.
In any event, the real issue, based upon the learned Magistrate's findings of fact, was whether the incapacitating event of the sun blinding the respondent was sufficient to preclude a finding of negligence because the respondent had insufficient time to avert the ensuing accident in all the circumstances established by the evidence. Whilst this still required the appellant to prove the respondent's negligence, for the reasons that follow, I am satisfied that the evidence compelled a conclusion that the respondent was negligent.

Ground 5 - the learned Magistrate erred by failing to find that the accident was solely caused by the respondent's negligent driving

Ground 5 complains that 'based on the findings of fact made by the learned Magistrate, the learned Magistrate erred by failing to find that the accident was solely caused by the negligent driving of the Respondent'.[69]
[69] Ground 5 of the Amended Appeal Notice.
Ground 5 sets out the various particulars of the respondent's alleged negligent driving, namely that he:[70]
a.Failed to keep a proper lookout and in particular, observe the warning sign indicating a left-hand bend into St Albans Road with a recommended speed of 25 km/h
b.Failed to at any stage observe the roadway turning into a sharp left-hand bend
c.Drove at an excessive speed in all of the circumstances;
d.Failed to reduce his speed, brake or slow down prior to approaching the sharp left-hand bend.
e.Allowed his vehicle to drift onto the wrong side of the road and directly into the path of the Appellant's oncoming vehicle.
f.By reason of the above, the findings made by the learned Magistrate clearly established the Respondent's breach of his common law duty of care owed to the Appellant and that the collision was caused solely as a consequence of the Respondent's negligent driving.
g. Notwithstanding the absence of any evidence as to the whereabouts of the sun, the learned Magistrate made a finding that the sun was in a position such that it impaired the Respondent's vision.
[70] Particulars to Ground 5 of the Amended Appeal Notice.
In essence, Ground 5 asserts that, given the learned Magistrate's findings of fact, the evidence compelled the learned Magistrate to find that the respondent had breached his duty of care to the appellant and was therefore negligent. Consequently, it is necessary to analyse the findings of fact made by the learned Magistrate to determine whether her Honour ultimately erred by failing to find that the appellant had proved his case against the respondent.

The learned Magistrate's findings and reasons for decision

The learned Magistrate delivered oral reasons on 31 May 2022.
The learned Magistrate noted there was no dispute that, at the time of the collision, the respondent was on the wrong side of the road.[71] The primary issue was whether the appellant had proved on the balance of probabilities that the respondent had breached his duty of care to the appellant.[72]
[71] Learned Magistrate's reasons, ts 3, 31 May 2022.
[72] Learned Magistrate's reasons, ts 3, 31 May 2022.
The learned Magistrate made a number of findings of fact based upon the evidence adduced at the hearing. As to how and where the collision occurred, the learned Magistrate preferred and accepted the appellant's evidence to that of the respondent's.[73] This implicitly meant that the learned Magistrate was satisfied of the following facts based upon the appellant's evidence:
(a)As the appellant approached the bend, he slowed his vehicle to 20 km per hour.[74]
(b)As the appellant negotiated the bend from St Albans Road, he saw the respondent's vehicle travelling on the wrong side of the road.[75]
(c)The respondent's vehicle was 'travelling very fast'.[76]
(d)As the respondent's vehicle approached the bend, its wheels locked up and there was smoke coming from the tyres of the vehicle.[77]
(e)Given the time available for the appellant to respond after seeing the respondent's vehicle on the wrong side of the road, namely one to two seconds, even though the appellant applied the brakes to his vehicle,[78] he was unable to avoid a collision with the respondent's vehicle which collided with the front passenger side of the appellant's vehicle.[79]
(f)The collision between the two vehicles 'occurred on the apex of the corner' between St Albans and Folly Road,[80] not some distance down Folly Road as claimed by the respondent.
[73] Learned Magistrate's reasons, ts 5 and ts 9, 31 May 2022.
[74] Appellant's Statement of Intended Evidence, par 9.
[75] Appellant's Statement of Intended Evidence, par 10. However, given the layout of Folly Road, the respondent must have been travelling in an eastbound direction along Folly Road as he approached the bend.
[76] Appellant's Statement of Intended Evidence, par 11.
[77] Appellant's Statement of Intended Evidence, par 12.
[78] Appellant's Statement of Intended Evidence, par 13.
[79] ts 18 and ts 19.
[80] ts 17.
The learned Magistrate found that the appellant's account was supported by the 'location of the skid marks on the road and the position of the vehicles when recovered by the tow trucks as shown in the footage [Exhibit 2]'.[81] In so finding, the learned Magistrate noted that all of the surrounding circumstantial evidence compelled her to a conclusion that it was 'highly improbable'[82] that the impact between the two vehicles occurred a significant distance away from the bend on Folly Road as alleged by the respondent (in any event, as noted above, the learned Magistrate accepted the appellant's account that the impact occurred on the apex of the bend connecting Folly Road and St Albans Road).
[81] Learned Magistrate's reasons, ts 6, 31 May 2022.
[82] Learned Magistrate's reasons, ts 6, 31 May 2022.
The learned Magistrate found that the skid marks seen on the road as depicted in a photograph [Exhibit 3] were 'more likely than not the result of [the respondent] braking heavily on the corner as described by [the appellant]'.[83] Furthermore, that evidence was consistent with the appellant's account of seeing smoke emanating from the locked wheels of the respondent's vehicle.[84]
[83] Learned Magistrate's reasons, ts 7, 31 May 2022.
[84] Learned Magistrate's reasons, ts 7, 31 May 2022.
Her Honour also found that, irrespective of whether the vehicles collided on the road or the verge, which the learned Magistrate found was 'of little moment',[85] the respondent 'was on the wrong side of the road and caused the impact'.[86]
[85] Learned Magistrate's reasons, ts 7, 31 May 2022.
[86] Learned Magistrate's reasons, ts 7, 31 May 2022.
Indeed, the learned Magistrate noted that:
(a)'The situation creating the danger was caused by the [respondent] being on the wrong side of the road';[87] and
(b)'To allow a vehicle to drift onto the wrong side of the road on a straight stretch of the road is … a significant breach of the duty of care owed to other road users'.[88]
[87] Learned Magistrate's reasons, ts 7 - ts 8, 31 May 2022.
[88] Learned Magistrate's reasons, ts 8, 31 May 2022.

The learned Magistrate essentially rejected the respondent's version of events, albeit not in its entirety. Additionally, her Honour found the respondent to be 'indignant, forceful and somewhat defensive'[89] in the manner he gave evidence at the hearing, but more importantly to be inaccurate as to his recollection of events[90] and unreliable.[91]
[89] Learned Magistrate's reasons, ts 7 and ts 8, 31 May 2022.
[90] Learned Magistrate's reasons, ts 7 and ts 8, 31 May 2022.
[91] Learned Magistrate's reasons, ts 10, 31 May 2022.
Nonetheless, despite rejecting the respondent's version of events, the learned Magistrate found that the respondent was truthful in the sense that he honestly believed his version of events to be true, albeit he had inaccurately reconstructed the true events in his mind. Significantly, the learned Magistrate accepted his evidence on one critical issue, namely that his vision was impaired prior to him reaching or seeing the warning sign on Folly Road.[92]
[92] Learned Magistrate's reasons, ts 10, 31 May 2022.
In expressing her reasons for so concluding, the learned Magistrate said she found no reason to reject the respondent's evidence that he was impaired by the sun and therefore did not see the warning sign.[93] This was despite noting that the time of the collision, namely 8.30 am on 25 February 2020, may have been cause to expect that the sun would not have been 'on the horizon' as claimed by the respondent.[94] Nonetheless, the learned Magistrate found, in the absence of evidence to the contrary, that she could not exclude the 'probability'[95] that the respondent's vision was impaired at some point prior to the warning sign.[96] In expressing her finding in this manner, I understand her Honour to be saying that she was satisfied on the balance of probabilities that the respondent was blinded by the sun.
[93] Learned Magistrate's reasons, ts 10.
[94] Learned Magistrate's reasons, ts 10.
[95] Learned Magistrate's reasons, ts 10.
[96] Learned Magistrate's reasons, ts 10.
The learned Magistrate was alive to the significance of the issue of where along Folly Road the incapacitating event occurred.[97] Indeed, her Honour noted that if the respondent was blinded by the sun a significant distance before the warning sign, then 'common sense would dictate that he should have been travelling a lot slower than he was when he reached the bend in St Albans Road'.[98]
[97] Learned Magistrate's reasons, ts 10 (Her Honour said: 'At what distance prior to that sign did he suffer the impaired vision? And should he have been able to pull over or stop before reaching the bend?').
[98] Learned Magistrate's reasons, ts 10.
Her Honour, in considering the impact upon the respondent of being blinded by the sun, and whether or not his consequent actions in the circumstances of this case amounted to a breach of his duty of care to the appellant, made the following further findings:
(a)The respondent's vision was impaired by the sun at some point prior to the warning sign.[99]
(b)There was no evidence that the respondent was aware that he was approaching a sharp bend in the road.[100]
(c)In the absence of sufficient evidence, her Honour was unable to safely determine how far before the warning sign the respondent became blinded by the sun or what distance he travelled before colliding with the appellant's vehicle after being so impaired.[101]
[99] Learned Magistrate's reasons, ts 10, 31 May 2022.
[100] Learned Magistrate's reasons, ts 11, 31 May 2022.
[101] Learned Magistrate's reasons, ts 11, 31 May 2022.
Nonetheless, despite concluding that she was unable to determine at which point the respondent was suddenly blinded by the sun, and prima facie being satisfied that drifting onto the wrong side of the road and thereby creating the danger that resulted in the collision, was a breach of the respondent's duty of care to the appellant, the learned Magistrate found that it was reasonable in the circumstances for the respondent to have taken the action he did. That action was, to pull the vehicle to the right side of the road in circumstances where he was unable to determine whether it was safe to stop the vehicle on the left side of the road.[102]
[102]Learned Magistrate's reasons, ts 11, 31 May 2022.
It is difficult to reconcile this conclusion with her Honour's view that there was insufficient evidence to essentially determine what distance the respondent travelled before the impact, and how much time elapsed. In any event, for the reasons that follow, leaving aside that part of the respondent's evidence which was rejected by the learned Magistrate, there was evidence before the learned Magistrate that enabled her to conclude that the respondent had been blinded by the sun some considerable distance prior to the collision on the apex of the bend.
In giving her reasons, the learned Magistrate noted that, had her Honour accepted the respondent's version of events, her Honour would have found the respondent liable on the basis that he had breached his duty of care to the appellant.[103] Her Honour commented that, on the respondent's version, he would have breached his duty of care to the appellant. Her Honour said, based upon the respondent's version, 'the situation creating the danger was caused by him being on the wrong side of the road. To allow a vehicle to drift onto the wrong side of the road on a straight stretch of the road is, in my view, a significant breach of the duty of care owed to other road users'.[104]
[103] Learned Magistrate's reasons, ts 7 - ts 8, 31 May 2022.
[104] Learned Magistrate's reasons, ts 7 - ts 8, 31 May 2022.
Ultimately, the learned Magistrate found that the appellant had failed to satisfy her on the balance of probabilities that the respondent had breached his duty of care to the appellant by exercising reasonable care to avoid a collision.[105]

Did the learned Magistrate err by failing to find that the accident was solely caused by the respondent's negligent driving?

[105] Learned Magistrate's reasons, ts 12, 31 May 2022.

On a proper analysis of the learned Magistrates' reasons, the following findings and conclusions must inevitably follow:
(a)The respondent was suddenly blinded by the rising sun as it appeared through a gap in trees, incapacitating him at some point as he drove along Folly Road.
(b)The respondent did not see the warning sign indicating a sharp left-hand bend and a recommended speed of 25 km per hour.
(c)There was 'no evidence of distances between the [warning sign] and the Folly Road bend or short distance before the that sign'.[106]
(d)Clearly, the respondent had not reached the point in the road where the warning sign was located.[107]
(e)It had 'not been established in the trial how far before the sign [the respondent] was, in fact, blinded by the sun'.[108]
(f) The skid marks seen on the road as depicted in a photograph [Exhibit 3] were caused by the respondent braking heavily on the apex of the bend (as described by the appellant)'.[109]
[106] Learned Magistrate's reasons, ts 10.
[107] Exhibit 4 - Respondent's Statement of Intended Evidence, par 5.
[108] Learned Magistrate's reasons, ts 10.
[109] Learned Magistrate's reasons, ts 7, 31 May 2022.
Although it was not possible to come to a conclusion about the precise distance between the warning sign on Folly Road and the point of impact between the two vehicles on the apex of the bend, they were a material distance apart. Furthermore, the distance between those two points is not determinative of the issue of whether the respondent breached his duty of care to the appellant. That is because the respondent's case was that he had been incapacitated before seeing the warning sign.
Given the above, there are only two inferences available as to why the respondent did not see the warning sign, namely either:
1.the respondent failed to keep a proper lookout for road signage, in this case the warning sign; or
2.the respondent was blinded by the sun a significant distance before the warning sign. That must be so given the respondent's clear and uninterrupted view of the road as he travelled towards the bend. By significant distance, I mean a distance sufficiently far away from the sign that an ordinary reasonable driver would have seen the sign.
If the respondent failed to keep a proper lookout for road signage, then the appellant's appeal would succeed on Ground 5 (given particulars (a), (b), (c) and (d)) namely that the respondent breached his duty of care by failing 'to keep a proper lookout and in particular, observe the warning sign indicating a left-hand bend into St Albans Road with a recommended speed of 25 km/h' and as a consequence '[f]ailed to at any stage observe the roadway turning into a sharp left‑hand bend;' and '[d]rove at an excessive speed in all of the circumstances:' and'[f]ailed to reduce his speed, brake or slow down prior to approaching the sharp left-hand bend'.
Although there is no direct evidence of exactly where along Folly Road the respondent was blinded by the sun, the only reasonable inference open on the facts was that the incapacitating event must have occurred a significant distance before the warning sign. This must follow given the respondent's evidence, which was accepted by the learned Magistrate, that he did not see the warning sign located on Folly Road, a straight road running east/west towards the bend. The weather was clear and there were no other vehicles on the road[110] or other objects impeding the respondent's view as he travelled in an easterly direction along Folly Road.
[110] Exhibit 4 - Respondent's Statement of intended Evidence, par 5.
The respondent was travelling at 70 km per hour before he was suddenly incapacitated by the sun. Consequently, as a matter of pure mathematics, his vehicle was covering 19.44 metres per second before he applied the brakes.
Given these facts, particularly that he did not see the warning sign on a straight stretch of unimpeded road on a clear sunny morning, the only reasonable conclusion is that he must have been blinded by the sun a considerable distance before reaching the warning sign.
Furthermore, given the learned Magistrate's finding that the impact between the vehicles occurred on the apex of the bend, it follows that the respondent's vehicle travelled a considerable distance between when he was blinded by the sun and ultimately collided with the appellant's vehicle.
Whilst appropriate allowance must be made for the sudden impact of being blinded by the sun, as was noted by Mason P in Dowsing v Goodwin,[111] that must be weighed with the fact that 'the reasonable driver is aware of the potential risk of the activity and may be expected to drive "defensively" in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect'.
[111] Dowsing v Goodwin (45) - (46) (Mason P); see also Stoeckel v Harpas (1971) 1 SASR 172.
Leaving aside the plausibility of whether the sun, at 8.30 am on 20 February 2020, was rising at an angle that caused the respondent to be suddenly blinded, a matter that the learned Magistrate noted in her reasons but nonetheless accepted, an experienced driver, let alone a driver with 57 years of driving experience such as the respondent, would have been aware of the dangers of driving in an easterly direction at a time when the sun was rising. Yet, prior to being suddenly blinded, the respondent took no steps to reduce his speed.
The respondent's claim that he immediately took appropriate actions and therefore did not breach his duty of care to the appellant cannot be sustained given the obviously significant distance he continued to travel after being blinded by the sun. This is reinforced by the fact that the respondent's evidence included that, after being blinded by the sun, he found he had unknowingly drifted onto the wrong side of the road and then became aware of a vehicle coming directly towards him.[112] On the learned Magistrate's findings, this could only have occurred on the apex of the bend.

Conclusion in relation to Ground 5

[112] Exhibit 4, par 5.

I am satisfied that Ground 5 has been made out. I am satisfied that the learned Magistrate erred by failing to find that the accident was solely caused by the respondent's negligent driving in that the respondent:
(a)Drove at an excessive speed in all of the circumstances (particular 5(c)).
(b)Failed to reduce his speed, brake or slow down prior to approaching the sharp left-hand bend (particular 5(d)).
(c)Allowed his vehicle to drift onto the wrong side of the road and directly into the path of the appellant's oncoming vehicle (particular 5(e)).
In the circumstances, the learned Magistrate erred by failing to conclude that prior to the point of impact the respondent had sufficient time to take appropriate evasive action which included slowing down and braking so as not to drive when he was unable to do so safely. Consequently, since this appeal is by way of re-hearing,[113] I am satisfied that the respondent breached his duty of care to the appellant.

Ground 6 - the learned Magistrate failed to provide adequate reasons

[113] MCA s 40(4) and s 40(4A), together with DCR r 50(1).

The appellant contends, by Ground 6, that,[114]
the learned Magistrate erred in failing to provide adequate reasons for the decision to dismiss the Appellants claim, based on the Respondent's defence, namely that he was blinded by the sun, when she ought to have provided legal reasons to support the decision and consequently failed to comply with section 31(1) of the Magistrates Court Act 2004 (WA).
[114] Ground 6 of the appellant's Amended Notice of Appeal.
The appellant submits that the reasons given by the learned Magistrate for dismissing the appellant's claim did not either:
(a)identify the relevant law applied resulting in a conclusion that the respondent's prima facie negligence was displaced by the incapacitating event of being blinded by the sun; or
(b)provide any analysis of the relevant provisions of the CLA.
Section 31 of the Magistrates Court Act 2004 (WA) (MCA) sets out the requirements for a court to provide reasons for a decision. Section 31 is reproduced below:
31.Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
In Auro Pty Ltd v Drage[115](28 February 2020), Staude DCJ at [37] - [40] helpfully set out some of the relevant cases and principles to be applied in considering whether or not the reasons for judgment were adequate. This included the following matters:
•'[J]udicial officers have a duty to deliver reasons that expose the process by which a decision has been reached' which 'enables the parties to understand the basis of the decision,' and 'a losing party to determine whether or not they have any grounds on which to appeal the decision'.[116]
•'The realities of pressure of work and limited time in the Magistrate's Court must be acknowledged. Section 31 of the Magistrate's Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all of the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of the proceedings in the Magistrate's Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length, which is important'.[117]
•'Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised'.[118]
•'The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose'.[119]
•'It does not automatically follow that because reasons for decision are inadequate, that an appealable error has occurred. Sometimes, having regard to the reasons as a whole, an inadequacy in reasoning may not give rise to any miscarriage of justice. Further, an appeal court may, in certain circumstances, even where inadequate reasons are given, decide the matter for itself, for example, where the only conclusion open on the evidence is that reached by the trial judge'.[120]
[115] Auro Pty Ltd v Drage[2020] WADC 24.
[116] Manonai v Burns [2011] WASCA 165 [53] (Hall J).
[117] Manonai v Burns [56] (Hall J).
[118] Velez Pty Ltd v Tudor [2011] WASCA 218 [63] (Murphy JA).
[119] Velez Pty Ltd v Tudor [63] (Murphy JA).
[120] Van der Velde v Halloran [2011] WASCA 252 [102] (Buss JA, Newnes JA & Mazza J).
Notably, both s 5B and s 5C are relevant to the issues in this matter. Section 5B of the CLA sets out the general principles relating to liability for harm caused by a person's negligence. In particular, it makes clear that liability does not arise unless certain preconditions are established, including:
(a)the foreseeability of the risk of harm (s 5B(1)(a));
(b)the level of the risk (s 5B(1)(b));
(c)the need for a reasonable person in the circumstances to have taken precautions to avoid the risk (s 5B(1)(c)).
Section 5C of the CLA deals with causation.
In her Honour's oral reasons delivered on 31 May 2022, other than noting that issues relating to lability were matters dealt with by CLA, the learned Magistrate did not provide details of how the CLA, or for that matter any common law authorities relating to negligence, was applied in this case.
The learned Magistrate did however refer to the following aspects of the law:
•The onus of proof was on the appellant to prove the claim.[121]
•The standard of proof was on the balance of probabilities.[122]
•In order to prove that the respondent was liable, the appellant was required to prove that the respondent had breached a duty of care he owed to the appellant.[123]
[121] Learned Magistrate's reasons for decision, ts 3.
[122] Learned Magistrate's reasons for decision, ts 3.
[123] Learned Magistrate's reasons for decision, ts 3.
In addition, the learned Magistrate provided a relatively detailed analysis of the facts and evidence of the case.
In this case, ultimately the critical issue was whether the actions of the respondent, subsequent to becoming incapacitated by the blinding sun, were such that he breached his duty of care to the appellant and was therefore liable for the damage caused to the appellant's vehicle.

Conclusion in relation to Ground 6

Whilst it would have been preferrable for the learned Magistrate to have provided more detailed reasons with reference to the relevant law applied, given the way in which the case ultimately turned on a limited issue of liability, having regard to the reasons provided by the learned Magistrate as a whole, any inadequacy in reasoning does not in this case give rise to any miscarriage of justice.
Ground 6 is dismissed.

Summary of the outcome of the appeal

Grounds 1 and 6 have not been made out by the appellant and are dismissed.
Ground 5 is upheld.
The appeal is allowed.
Pursuant to s 43(7)(a) and s 43(7)(b) of the MCCPA, Magistrate Scutt's judgment in dismissing the appellant's claim in PE GCLM 7330 of 2020 is set aside in full. I am satisfied that the appellant has proved that the respondent breached his duty of care to the appellant. Judgment in the sum of $14,065 is entered in favour of the appellant.

I will hear the parties further in relation to the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
19 JANUARY 2023