Burke v Jusic
[2010] QDC 359
•24 September 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Burke v Jusic [2010] QDC 359
PARTIES:
Geoffrey Alan Burke
(Appellant)
and
Amna Jusic
(Respondent)FILE NO:
621/09
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
24 September 2010
DELIVERED AT:
Southport
HEARING DATE:
13 September 2010
JUDGE:
Newton DCJ
ORDER:
Appeal dismissed with costs.
CATCHWORDS:
APPEAL AND NEW TRIAL – Appeal - Powers of Court – Findings of fact
The Committee of Direction of Fruit Marketing v Spence (1953) 27 ALJR 427, cited
Fox v Percy (2003) 214 CLR 118, applied
Sibley v Kais (1967) 118 CLR 424, cited
Hermit Park Bus Service v Ross [1952] St.R.Qd. 128, appliedCOUNSEL:
Mr G J Radcliff for the appellant
Mr K Howe for the respondent
SOLICITORS:
DC Law for the appellant
Rodgers, Barnes & Green for the respondent
The appellant, Geoffrey Alan Burke, appeals to this Court against the decision of a Magistrate finding him 100 per cent responsible for a motor vehicle accident which occurred at Southport on 15 December 2006. The Magistrate in his reasons for decision found that Mr Burke had failed in his duty to keep any or any proper lookout, failed to exercise reasonable care, skill or judgment in the management and control of his vehicle and failed to give way to oncoming traffic.[1] The Magistrate further found that the respondent, Ms Jusic, took all reasonable and appropriate action to avoid the incident and further found no contributory negligence on her part.[2]
[1] Decision, p1-10, lines 11-20.
[2] Ibid, lines 20-25.
It was not in dispute that at approximately 7:30pm on 15 December 2006 the plaintiff’s (respondent’s) vehicle was travelling on Ferry Road at Southport in a southerly direction approaching the intersection at Winchester Street at the same time the defendant’s (appellant’s) vehicle was travelling in the opposite direction, that is, in a northerly direction upon Ferry Road before proceeding to turn right into Winchester Street at the intersection without stopping, while facing a “give way” sign and colliding with the plaintiff’s vehicle.
In her evidence-in-chief before the Magistrate Ms Jusic stated as follows:
“As I was approaching close to Winchester Road, a car appeared just over the crest of the hill… as I was driving up through Ferry Road, a car appeared at the right-hand side approaching the other side of the road travelling north on Ferry Road. It appeared to be going straight but then all of a sudden it was just coming out right, it didn’t have any indication, any lights indicating that it was turning and it seemed to accelerate in front of me and I was unable to be prepared to even… notice that it was going to come out to the right so I tried to avoid it by braking and swerving to the right however the collision was imminent and all my airbags came out and a big bright light and swerved all over the road and was injured quite badly and I had to be taken out of the car and taken to hospital.”[3]
Ms Jusic stated that she was in the left-hand lane of the two southbound lanes in Ferry Road and there were a few other cars on the road. She stated that she applied her brakes as soon as she saw the car in front of her and that she had been travelling along Ferry Road at 60 kilometres per hour, that being the speed limit at that section of the road. It was dark and the time was around 7:30pm. Ms Jusic stated that there was nothing else she could have done apart from applying the brakes of her vehicle and swerving to the right in order to attempt to avoid colliding with the defendant’s vehicle. Ms Jusic stated that she tried to avoid the appellant’s vehicle but “it had just come out so fast that it was just impossible not to collide”[4]. She repeated that she was in the left lane of the southbound lanes on Ferry Road when she noticed the appellant’s vehicle and that her vehicle ended up on the right-hand lane.
[3] Transcript, p1-4, lines 8-30.
[4] Transcript, p1-10, lines 5-10.
In cross-examination Ms Jusic stated that there was some light drizzle at the time although not sufficient to wet the road. She denied a suggestion that her headlights were not illuminated at the time.
Evidence was also adduced on behalf of the respondent from an independent eye-witness, Mr John Gosling. He stated that:
“I was travelling on… Ferry Road, towards the Southport school, and… there’s a dual carriageway there and there was another car coming up in the opposite direction, and [it] moved over to the lane to go across into Winchester Street, … and as we approached that intersection there, the car for some reason sort of jumped out in front of us. I braked severely and swerved to the right, and the car on my left kept going and hit the vehicle and that was it.”[5]
Mr Gosling stated that he saw no indication that the vehicle intended to turn across his path. He continued:
“Well, having seen the car come up there, and I presume it was going to stop, because to me that’s how the rules are, you are supposed to stop, you’re supposed to allow the traffic to go through before you cross in front of it, so everything happened all of a sudden, like, I see this car come rocketing in front of me, so I had to plant my foot on the brake. It threw my mother up towards the front of the car there and I was trying to hard miss [sic]. If I hadn’t, I would have been the one that was in the accident myself.”[6]
[5] Transcript, p1-18, lines 25-34.
[6] Transcript, p1-20, lines 15-25.
Mr Gosling was asked how far away was the appellant’s vehicle when he realised it was going to turn in front of him. He replied:
“[it] just turned in front me… just enough room for me to escape getting hit – hitting the ute… what, a car length or something or whatever it is.”[7]
[7] Transcript, p1-21, lines 34-39.
Mr Gosling confirmed in his evidence-in-chief that the lights on the respondent’s vehicle were illuminated at the time. In cross-examination Mr Gosling stated that he was slightly in front of Ms Jusic’s car which was travelling in the left lane just behind his boot.
The appellant, Mr Burke, confirmed that the road surface was reasonably dry at the time although it had started to rain lightly some two or three minutes prior to the accident. His evidence-in-chief proceeded in the following manner:
“Now, you – what direction was the vehicle travelling?—North.
And, which lane was your vehicle in?—It was in the turning lane travelling north.And, you say it was in the turning lane. Was your vehicle to turn; is that correct?—Correct.
And, in doing that, did you do anything?—Yes, I turned in my immediate danger zone, to the best of my knowledge, there were no vehicles and then I saw another vehicle that wasn’t in my – that was in my danger zone – a black vehicle without lights on. When I saw it I accelerated, but too late.
Okay. A couple of things. What do you mean by immediate danger zone?—Well, an area that’s not safe in which to turn.
And, on that night what was your immediate danger zone?—Approximately 50 or 60 metres.
When you say approximately 50 or 60 metres, in relation to your vehicle, where’s that 50 or 60-----?—Turning in front of the traffic ‘cause there was only one car that was visual to myself.
And, that car – that one car you say was visual to yourself, what – could you describe that vehicle?—It was in the inside lane travelling-----
When you say inside lane, is that the left or right?—Nearest the median strip.
Sorry, carry on?—Nearest to the median strip travelling up the hill and, in my estimation, I had sufficient time in which to turn safety into Winchester Street, which I did.
That car that you say you saw, could you describe that vehicle, please?—No, I can’t. Headlights on shining at me. I don’t know what type of vehicle it was.
And, that was the only vehicle that you say you say; is that correct-----?—Yes.
And, you proceeded?—I proceeded.
Can you tell the Court what happened next?—Well, having avoided the car that I saw, that wasn’t in my impact zone, I realised there was another vehicle there and I didn’t know whether I’d be able to avoid it or not, so I did accelerate but it wasn’t sufficient acceleration to avoid the impact. And, I was hit in the rear quarter panel between the rear wheel arch and the tail gate of the utility. And, that lane was the – it’s a three-lane area. The car that hit me was in the middle land and at impact, I probably had my front wheels about the kerb of Winchester Street and Ferry Road.”[8]
[8] Transcript, p1-28 line 33 to p1-29 line 30.
The Magistrate concluded that the incident occurred in the following manner:
“Mr Gosling’s motor vehicle and Mr Jusic’s motor vehicle were travelling south-bound on Ferry Road, both vehicles were travelling at approximately 60 kilometres per hour. Both vehicles did have their headlights illuminated, Ms Jusic’s vehicle was in the left hand lane and Mr Gosling’s motor vehicle was in the right hand lane, slightly ahead of Ms Jusic’s vehicle.
Mr Burke was travelling in a northerly direction along Ferry Road, he entered the right-hand turning lane with the intention of making a right-hand turn into Winchester Street. Mr Burke observed one approaching vehicle, that being Mr Gosling’s motor vehicle and he did not observe Ms Jusic’s motor vehicle which was obscured by the positioning of Mr Gosling’s motor vehicle.
Mr Burke proceeded with making the turn, judging in his estimation it was safe to turn in front of Mr Gosling’s motor vehicle. He then observed Ms Jusic’s motor vehicle and accelerated to avoid an incident with that second vehicle. The impact occurred as a result of crossing the path of the approaching vehicle.”[9]
[9] Decision, p1-9, line 1 to line 43.
The Magistrate made findings that the headlights of Ms Jusic’s vehicle were illuminated at the time and that she had observed the appellant’s turning vehicle and took all reasonable evasive action to avoid the collision.[10] The Magistrate found that Mr Burke drove his motor vehicle across the path of both Mr Gosling and Ms Jusic. He found further that Mr Burke failed to perform the duty of care owed to other road users on the road at the relevant time and that his failure to perform that duty of care resulted in damage being occasioned to Ms Jusic’s motor vehicle. The Magistrate specifically found that Mr Burke failed to keep any or any proper lookout, failed to exercise reasonable care, skill or judgment in the management and control of his vehicle and failed to give way to oncoming traffic. He also found that Ms Jusic had taken all reasonable and appropriate action to avoid the incident and found no contributory negligence on the part of Ms Jusic. The Magistrate found that the negligence of Mr Burke caused the damage to Ms Jusic’s motor vehicle and that Mr Burke was wholly responsible for the accident.
[10] Decision, p1-9, lines 45 to 50.
The Magistrate gave judgment to Ms Jusic in her action against Mr Burke in the amount of $16,913.91 together with interest in the amount of $4,823.93. The defendant was ordered to pay Ms Jusic’s costs on an indemnity basis. In relation to Mr Burke’s claim against Ms Jusic the claim was dismissed and Mr Burke was ordered to pay costs on the standard basis with respect to that matter.
In my view it was open to the Magistrate to prefer the evidence of Ms Jusic and Mr Gosling to that of Mr Burke. In particular, the finding of the Magistrate that the headlights on Ms Jusic’s vehicle were illuminated at the relevant time was clearly open on the evidence before him. I accept that the conclusions and findings of fact made by the Magistrate were sound and based on the evidence placed before him.
At the hearing of the appeal counsel for Mr Burke suggested that Ms Jusic could be found to have contributed to the accident by accelerating as her vehicle approached the intersection from which Mr Burke turned across her path, or that she failed to brake sufficiently in order to avoid the collision. There is no merit, in my view, in either suggestion. I am unable to find any negligence on the part of Ms Jusic in the manner in which she operated her motor vehicle prior to the collision with the vehicle of Mr Burke. The Magistrate correctly, in my view, concluded that Mr Burke was wholly responsible for the collision and that Ms Jusic should not be found to have contributed at all to the incident.
I was referred by Counsel for the appellant to the joint judgment of the High Court[11] in The Committee of Direction of Fruit Marketing v Spence[12] where the Court stated:
“On an appeal from a judge of fact it is the duty of an appellate court to examine the evidence itself, due regard being had in weighing that evidence to any opinion formed by the trial judge of the credibility of the witnesses and to those advantages he derives from the general atmosphere of the trial. But in the present case the plaintiff’s evidence was uncontradicted, he appears to have been a very frank witness, and there is nothing to suggest that the learned trial judge did not accept him as such. It is therefore a case where, on the crucial question whether the plaintiff was guilty of contributory negligence, an appellate court is not at any real disadvantage in weighing the evidence and drawing any inferences from it.”
I further note the decision of the High Court in Fox v Percy[13] that a finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbably or contrary to compelling inferences in the case.
[11]Williams, Webb, Kitto and Taylor JJ.
[12] (1953) 27 ALJR 427 at 428.
[13](2003) 214 CLR 118, per Gleeson CJ, Gummow and Kirby JJ, Callinan J contra.
This is a case where the lower Court decided the matter of credibility in favour of Ms Jusic and this Court should not disagree with that unless it is clearly demonstrated that the Magistrate was wrong in doing so.[14] In my view that cannot be demonstrated and therefore this Court should accept the Magistrates finding on that matter.
[14]Hermit Park Bus Service v Ross [1952] St.R.Qd. 128 at p135 per Mansfield SPJ.
The High Court in Sibley v Kais[15] noted that “the obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”[16] Counsel for the appellant places some emphasis on this passage in seeking to have a finding of contributory negligence made against Ms Jusic. However, in my opinion nothing said by the High Court in the passage quoted would warrant interference by this Court with the conclusions of the Magistrate. To turn across the face of oncoming traffic as Mr Burke did in this case, clearly demonstrates the failure by Mr Burke to take reasonable care. The manoeuvre performed by Mr Burke in so turning left Ms Jusic insufficient opportunity to do very much at all to avoid colliding with his vehicle. Ms Jusic braked and swerved her vehicle and the Magistrate concluded that in doing so she had done everything reasonably open to her in the circumstances. That conclusion was not only open on the evidence but was in my view clearly correct.
[15] (1967) 118 CLR 424 at 427.
[16]Joint judgment of Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ.
The Magistrate in his reasons for decision accepted the evidence of Mr Burke that his motor vehicle had been damaged in the incident but found that the amount of damage could not be quantified on the evidence placed before him. The Magistrate also found that the cost of replacing a set of golf clubs which had been in Mr Burke’s vehicle and also damaged in the collision was too vague and unclear to enable assessment.[17] In my view, the Magistrate’s decision in this regard was correct. At its highest the evidence with respect to repairing damage to the appellant’s vehicle as a result of the collision established no more than a number of cash payments in the amount of $21,000 being made by the appellant to a person by the name of “Pat”, described as a “friend of a friend of a friend”. The repairer was not called to give evidence, his whereabouts apparently being unknown to the appellant. A number of invoices was admitted into evidence to establish the replacement costs of the damaged golf clubs.[18] However, no evidence was placed before the Magistrate to establish the value of the clubs which were, I understand, some 18 months to two years old at the time of the accident. In the circumstances, the best that any Court could do with this unsatisfactory evidence would be to attempt to make an estimate of the appellant’s quantum of damages by heavily discounting the figures presented by Mr Burke. I am prepared to make such an attempt and, largely at the suggestion of counsel for the appellant, discount the figures significantly. Accordingly, an estimate of the appellant’s quantum would be $10,500 in respect of damage to his motor vehicle and $2,250 in respect of damage to the golf clubs. The total would therefore be $12,750. I should add that the respondent was not obliged to plead to the prayer for relief – the only part of the appellant’s pleadings that actually nominated an amount claimed by way of damages.
[17]Decision, p1-5, lines 1-50.
[18]Exhibit 1.
The appeal is dismissed, no basis having been demonstrated to warrant this Court interfering with the orders of the Magistrate. The appellant is to pay the respondent’s costs of the appeal to be agreed or failing agreement to be assessed on a standard basis.
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