SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
CKI UTILITIES DEVELOPMENT LTD & ORS v STAR TRACK EXPRESS PTY LTD
[2009] SASC 106
Judgment of The Honourable Justice Gray
24 April 2009
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE INFERENCES OF FACT INVOLVED - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
Appeal against decision of Magistrate dismissing both plaintiffs' claim and defendant's counterclaim - claim and counterclaim arose from collision between truck and stobie pole - both truck and stobie pole suffered damage - each party alleged liability of other party - Magistrate not able to conclude how collision caused - whether stobie pole intruded into carriageway causing obstruction - inferences to be drawn from evidence.
Held: appeal allowed - orders of Magistrate set aside - judgment entered in favour of plaintiff.
Supreme Court Civil Rules 2006 (SA) r 292, referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; Reid v Kerr (1974) 9 SASR 367; Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370; WAEJ v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 188; SS Hontestroom v SS Sagaporack [1972] AC 37; Watt or Thomas v Thomas [1947] AC 484; Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403; Nominal Defendant v Haslbauer (1967) 117 CLR 448, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"res ipsa loquitur"
CKI UTILITIES DEVELOPMENT LTD & ORS v STAR TRACK EXPRESS PTY LTD
[2009] SASC 106Magistrates Appeal
GRAY J.
Introduction
This is an appeal following a trial in civil proceedings in the Magistrates Court.
The issues at trial arose from an incident that occurred when a Mitsubishi Canter truck collided with a stobie pole on Monday 23 October 2006, at or about 11:00 am on North East Road, Modbury.[1] The truck was travelling north in the lane nearest the left hand kerb of a major road with three lanes for northbound traffic. The stobie pole was positioned adjacent to the roadway, but erected on the footpath. It was one of a number of poles along the road. A stobie pole is a steel and concrete pole which carries electricity and telephone lines, often referred to in States other than South Australia as utility, telegraph or power poles.
[1] This road has variously been referred to in evidence as North East Road, Main North East Road and Main North Road. The correct…
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- Case
- [2009] SASC 106
- Decision Date
CaseChat Overview and Summary
The court had to decide several legal issues. The primary issue was whether the stobie pole was intruding into the carriageway, causing an obstruction that led to the collision. The court also needed to assess whether the Magistrate’s findings of fact were properly made and whether the decision to dismiss both the plaintiffs’ claim and the defendant’s counterclaim was correct. Furthermore, the court had to consider whether the Magistrate's decision to reject the evidence of a key witness without allowing him an opportunity to respond to an allegation of self-servitude constituted a breach of natural justice.
The court found that the Magistrate's decision was flawed in several respects. The court held that the Magistrate breached natural justice by rejecting a key witness's evidence without giving him an opportunity to respond to an allegation of self-servitude. The court also found that the Magistrate’s finding that the truck driver was driving straight before the collision was contrary to the evidence provided by the driver himself. Additionally, the court held that the doctrine of res ipsa loquitur supported the inference that the collision occurred because the driver moved the vehicle too far to the left and came into contact with the pole. Consequently, the court concluded that the stobie pole was not intruding into the carriageway and that the truck driver's lack of care was the cause of the collision. The appeal was allowed, and the orders of the Magistrate were set aside. Judgment was entered in favour of the plaintiffs.
In light of the above, the court orders that the decision of the Magistrate be set aside, and judgment is entered in favour of the plaintiffs, CKI Utilities Development Ltd. The defendant, Star Track Express Pty Ltd, is ordered to pay the costs of the appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GRAY J
In SS Hontestroom v SS Sagaporack,[19] Lord Sumner discussed the power of the court of appeal to reverse a finding of fact made by the trial judge contrary to the evidence of a witness:Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion”. In the circumstances, it is appropriate to find that Mr Youngman was indeed veering slightly left in accordance with the evidence that he provided at trial.[19] SS Hontestroom v SS Sagaporack [1972] AC 37 at 47 per Lord Sumner, citing Watt or Thomas v Thomas [1947] AC 484. Reconsideration of the Matter The primary question to be addressed is whether the pole was intruding into the road so as to obstruct the defendant’s driver’s passage along the road in a manner dangerous to road users. The evidence suggests that it was not. Mr Perry observed that when he inspected the pole approximately two months before the collision, the pole was not leaning. Although the Magistrate placed limited reliance on Mr Perry’s evidence, this observation was not challenged. In the two months following Mr Perry’s inspection of the pole, no other collision occurred, notwithstanding that semi trailers and other large vehicles daily travelled on the relevant carriageway. The evidence of Mr Youngman also supports a finding that the pole with any attachments was not leaning into the carriageway so as to cause an obstruction to passing traffic. Mr Youngman noted that he drove on that road at least three times a week and on prior occasions had not observed anything out of the ordinary. It can be assumed that a truck driver with a large cabin would be aware of the vehicle clearance and would be particularly observant as to any potential obstacles. Mr Bowden’s evidence, although not relied upon by the Magistrate, also supports the finding that the pole did not lean into the carriageway. His evidence was that the pole leaned away from the road. Consequently, it may be concluded that the pole was not leaning into the road and causing an obstruction. The defendant suggests that the only explanation for the lack of impact damage to the front cabin is that the pole or an attachment was obstructing the carriageway, as otherwise the front of the cabin would also have sustained damage. This argument is rejected. It does not follow that the only explanation for the damage to the truck to the exclusion of the cabin, is a collision with a pole leaning into the road. Such damage is consistent with the admitted manoeuvre to the left, which would have been compounded by the camber on the road surface. This sequence of events readily explains the damage to the back of the truck. As a consequence, it is my view that the truck driver’s want of care was the cause of the collision.