City of Boroondara v Verrocchi

[2015] VSC 525

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 00725

CITY OF BOROONDARA

And

JAYDEN HUCKSTEPP

First appellant

 Second appellant

v  

ANTONIO VERROCCHI

Respondent

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2015
DATE OF JUDGMENT	28 September 2015
CASE MAY BE CITED AS:	City of Boroondara v Verrocchi
MEDIUM NEUTRAL CITATION:	[2015] VSC 525

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APPEAL – motor vehicle collision – claim by respondent for damages in respect of negligent driving of second appellant – order by magistrate that second appellant pay damages to respondent – whether reasons for decision of magistrate adequate – whether reasons disclosed path of reasoning – whether finding of negligence open on the evidence – Magistrates’ Court Act 1989 (Vic) s 109(1).

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APPEARANCES:	Counsel	Solicitors
For the appellants	Mr P Noonan	Sparke Helmore Lawyers
For the respondent	Mr M Black	Mills Oakley Lawyers

HIS HONOUR:

1. A motor vehicle collision occurred between a 15 tonne garbage truck driven by Jayden Huckstepp and a motor vehicle driven by Antonio Verrocchi on 16 May 2014.  Mr Huckstepp was an employee of the City of Boroondara. 

1. Mr Verrocchi issued a proceeding in the civil jurisdiction of the Magistrates Court of Victoria seeking damages for the damage that was done to his vehicle. He alleged that Mr Huckstepp had negligently driven the truck into his vehicle while Mr Verrocchi was attempting to pass the truck.

1. At the hearing of the claim, the issue of negligence turned on whether Mr Huckstepp had driven the truck into Mr Verrocchi's vehicle or whether

   
   

   Mr Verrocchi had driven his vehicle into Mr Huckstepp's stationary truck.  The magistrate upheld Mr Verrocchi's claim and ordered Mr Huckstepp to pay him $22,074.44 plus interest of $711.22 plus costs of $6,801.56.

1. The City of Boroondara and Mr Huckstepp have appealed against the orders under s 109(1) of the Magistrates Court Act 1989 (Vic) on questions of law.  The questions may be described as follows

(i)     Whether the magistrate gave adequate reasons for the decision that he made; and

(ii)  Whether his Honour made a decision that was not rational in the sense that it was not capable of being supported by the evidence.

In the way that the appeal was conducted, the first question assumed greater prominence.  It was really submitted by the appellants that the logic of the decision of the magistrate was unintelligible when considered by reference to the inadequacy of his Honour’s reasons.

1. The magistrate decided the case on the same day as the trial after hearing the evidence.  According to the transcript of those orders, his Honour stated:

There’s no issue as to the general location or time of this accident. The damage to the respective vehicles is broadly consistent with both versions of events. I accept that shortly before the impact both vehicles were stationary, the Plaintiff behind the Defendant. The Defendant was aware of the presence of the Plaintiff. The Plaintiff had been behind the Defendant’s truck for some time but waiting an opportunity to pass. The accident occurred as the Plaintiff endeavoured to pass to the right-hand side of the Defendant’s vehicle.

I accept that there were cars parked in the vicinity of the accident, but that there was sufficient room for the Plaintiff to pass the Defendant subject to taking reasonable care. The Plaintiff’s version is that he had partially completed passing the Defendant when the Defendant moved the front of his truck to the right impacting and scraping along the left-hand side of his vehicle.

The Defendant’s version is that he was stationary at impact and that the Defendant misjudged the distance between the vehicles as he endeavoured to overtake. There is evidence that the Defendant’s truck is immobilised when engaged in the task of raising bins. There was evidence by a witness, albeit not an independent witness, for the Plaintiff that the observed the Defendant move from the kerb. It is clear that that witness was well placed to make such an observation.

Having considered the evidence, including the tendered documents, I am satisfied that the Plaintiff’s version of events is more likely than not and the judgment is for the Plaintiff therefore.

1. It was common ground in the appeal that a magistrate is required to give adequate reasons for decision and that it is an error of law for a magistrate not to do so.[1]  The reasons for this requirement are several[2] and the importance of giving adequate reasons for decision cannot be doubted.  The reasons must deal with the issues of importance in a case[3] and disclose the path of reasoning[4] that was adopted to the resolution of those issues.  Unless issues of fact turn upon straightforward questions of credit, it is not enough simply to say that the version of one side rather than the other is to be preferred.[5]  Where, as in the present case, there is more to reconcile than credit, the basis for preferring one body of evidence to another must be indicated.[6]  Of course, reasons for decision must be read as a whole, in the light of the evidence and fairly in context.[7]  These principles have been stated and restated by the courts on many occasions.[8]

   [1]De Iacovo v Lacanale [1957] VR 553, 559 (Monahan J).

   [2]            Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 278–9 (McHugh JA) (‘Soulemezis’).

   [3]Hunter v Transport Accident Commission & Anor [2005] VSCA 1 (10 February 2005) [21] (Nettle JA, Batt and Vincent JJA agreeing) (‘Hunter’) cited in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 (21 December 2005) [37] (Ashley JA, Warren CJ and Nettle JA agreeing) (‘Franklin’).

   [4]Wingfoot AustraliaPartners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ); Hunter [2005] VSCA 1 (10 February 2005) [21] (Nettle JA, Batt and Vincent JJA agreeing); Franklin [2005] VSCA 317 (21 December 2005) [38] (Ashley JA, Warren CJ and Nettle JA agreeing); Transport Accident Commission v Kamel [2011] VSCA 110 (20 April 2011) [70]–[73] (Kyrou AJA, Warren CJ and Ashley JA agreeing).

   [5]            Soulemezis (1987) 10 NSWLR 247, 280 (McHugh JA).

   [6]Hunter [2005] VSCA 1 (21 December 2005) [21], [28] (Nettle JA, Batt and Vincent JJA agreeing); Rodda v Transport Accident Commission [2008] VSCA 276 (18 December 2008) [98] (Hargrave AJA, Ashley and Dodds-Streeton JJA agreeing).

   [7]Secretary to the Department of Justice v Yee [2012] VSC 447 (26 September 2012) [94] (Kyrou J); Helou v Shaya [2013] VSC 297 (11 June 2013) [24]–[25] (Beach J) (‘Helou’).

   [8]See eg, Soulemezis (1987) 10 NSWLR 247, 257–8 (Kirby P), 268-74, (Mahoney JA), 278–81 (McHugh JA); Helou [2013] VSC 297 (11 June 2013) [23]–[25] (Beach J); Hunter [2005] VSCA 1 (21 December 2005) [21] (Nettle JA, Batt and Vincent JJA agreeing).

1. In carefully prepared written and oral submissions, counsel for the appellants criticised the reasons for decision of the magistrate in several respects. Of critical importance to his criticisms was the unchallenged evidence that the truck was not capable of being driven with its collection arm extended.  It was submitted that, on the evidence, the magistrate was bound to find that the truck had its collection arm extended out at the time of the collision and was therefore immobilised.  The only inference available was that Mr Verrocchi had driven his vehicle into the stationary truck.  The magistrate had not shown why that irresistible inference had not been drawn.

1. To analyse these submissions it is necessary to examine the evidence. 

1. Oral evidence was given by Mr Verrocchi, who was driving the vehicle, and his son, Mr Verrocchi junior (an adult), who was the rear left side passenger.  Having examined the transcript of their evidence, I think it is fair to say that they saw the truck with the collection arm extended to the left as they slowly passed the truck to the right.  They could not have seen the position of the arm when the collision actually occurred because it was obscured by the truck. On this evidence, the magistrate was not bound to find that the arm was extended and therefore that the truck was immobilised at the moment of collision.

1. In his evidence, Mr Verrocchi senior said that he was looking forward and did not see whether the truck was moving at the point of impact. But his evidence was that he did not change the direction of his travel at any stage.  This is consistent with the truck running into his vehicle.

1. As the magistrate found, Mr Verrocchi junior was in a very good position to see what happened.  He gave the clearest of evidence that the truck drove into his father's vehicle.  He survived cross-examination on that point and clearly impressed the magistrate.

1. Strangely, in a report that was tendered in evidence, Mr Verrocchi senior told a loss assessor 17 days after the collision that he had ‘hit a parked car’.  He could not comment on this when giving oral evidence, even under vigorous questioning by the magistrate. But he maintained in his oral evidence that the truck had driven into him, indeed that the damage was a scraping forward from the point of impact.  He said he did not hit a parked car.  In my view, the magistrate was not bound to reject Mr Verrocchi's oral evidence because of what he told the loss assessor.

1. Turning to Mr Huckstepp, his evidence was that the truck was stationary – indeed immobilised – while the arm was extended out collecting rubbish when Mr Verrocchi drove his vehicle into the truck. On his account, Mr Verrocchi had become impatient waiting to pass and had misjudged the manoeuvre.  As to the immobility of a truck with an extended rubbish collection arm, Mr Huckstepp's evidence was supported by the oral evidence of the truck driver's training supervisor, Bill Soromedis.

Even more strangely, in a report signed to be true in every detail, Mr Huckstepp said on the day of the collision that the speed of his vehicle at the moment of impact was three kilometres per hour.  Of course, this is not consistent with the collection arm being extended.  In oral evidence he said he had misread the report and he was, in fact, stationary at that time.  The magistrate was certainly not bound to accept this evidence, and his Honour did not.

1. Such was the evidence in the case.  Considered in the context of this evidence, I think it is very clear that, in the reasons given by the magistrate, his Honour has addressed the issues of importance in the case and provided reasons which intelligibly disclose the path of reasoning that was adopted. 

1. In the second paragraph in particular, his Honour sets out the competing evidence in relation to the critical question of whether the truck was immobilised at the time of the collision. In stating that Mr Verrocchi junior was well placed to see what actually happened, his Honour was indicating that the truck was moving as that witness had deposed.  This necessarily involves rejection of the evidence of Mr Huckstepp that the rubbish collection arm was extended at that point. 

1. The magistrate went on to refer to the evidence generally, including the tendered documents. His Honour was obviously referring to the reports given by Mr Verrocchi and Mr Huckstepp.  Having expressly mentioned these reports, I do not think it was necessary for him to discuss them.  Of the two, Mr Huckstepp's statement on the day of the collision that his speed was three kilometres per hour at the time of impact was obviously far more damaging than Mr Verrocchi's statement 17 days after the collision that he had hit a parked car. I think this conclusion arises naturally from the totality of the evidence and the contents of the statements that were made and I think that his Honour was indicating that he saw the matter in that way.  Read fairly and in context, the magistrate was stating that the preponderance of the evidence was that Mr Huckstepp had driven his truck into Mr Verrocchi's vehicle immediately after completing the rubbish collection operation, that is, when the rubbish collection arm had been withdrawn.  I do not think any of this is speculation or guesswork as to why the magistrate decided the case in the way that he did.  It comes from a fair reading of his Honour’s reasons for decision.

1. For those reasons, despite the force of the submissions made by the appellants, I must dismiss the appeal.