CKI Utilities Development Ltd v Star Track Express Pty Ltd

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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 106

Magistrates Appeal

GRAY J.

Introduction

  1. This is an appeal following a trial in civil proceedings in the Magistrates Court.

  2. 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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Details
Case
[2009] SASC 106
Decision Date

CaseChat Overview and Summary

The appeal in CKI Utilities Development Ltd v Star Track Express Pty Ltd concerns a dispute arising from a collision between a truck and a stobie pole. The plaintiffs, CKI Utilities Development Ltd, brought a claim against the defendant, Star Track Express Pty Ltd, after a truck operated by the defendant collided with a stobie pole, causing damage to both the truck and the pole. In turn, the defendant brought a counterclaim against the plaintiffs, alleging that the stobie pole had intruded into the carriageway and obstructed the truck’s passage. The matter was heard before a Magistrate who dismissed both the plaintiffs’ claim and the defendant’s counterclaim. The appeal before the court was to determine whether the stobie pole was intruding into the carriageway, causing an obstruction that led to the collision.

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

The failure to provide Mr Perry with an opportunity to respond to the suggestion that his evidence was self-serving was manifestly unfair and a departure from the proper conduct of a case. The basis for rejecting Mr Perry’s evidence at trial was unsound, as it was rejected without Mr Perry being accorded an opportunity to respond to the suggestion that his evidence was self-serving. The Magistrate was under an obligation to do so. This obligation was not adequately fulfilled. This amounted to a breach of the natural justice hearing rule. A Finding contrary to the evidence The Magistrate, in the course of her reasons, stated: “I accept Mr Youngman’s evidence that he was driving straight prior to the collision occurring”. It may be inferred that the Magistrate was referring to Mr Youngman driving within the left hand lane in a northerly direction, and not veering to his left. The difficulty confronting this finding is that Mr Youngman’s evidence was to the contrary. Mr Youngman in his evidence in chief described his manoeuvre as follows:Q.After you’d come back after just encroaching on to the middle lane, do you recall where you were positioned in your lane, the far left one.A.As I was going straight?Q.Yes.A.Just right in the middle of the road.Q.What was the next thing that you noticed.A.I was just bouncing all over the place. Q.What happened to you inside the cabin.A.I hit my head on top of the box in the cabin, like a little container type thing where you put your paperwork and stuff in. This evidence was clarified in cross-examination when Mr Youngman described his manoeuvre as follows:Q.So you started to move into the middle lane, all the time checking to make sure there was nothing coming. A.Yes.Q.So why didn’t you just move into the middle lane. A.Because I remembered I needed to go straight ahead as well sort of shortly – further up the road.Q.So you swerved back into the left-hand lane.A.I didn’t swerve, I glided back in, yes.Q.Did you or did you not swerve back into the left-hand lane.A.Yes.Q.And it was immediately following that movement that the collision occurred.A.It wasn’t a swerve, it was just a glide back in.Q.Isn’t the first thing you remember after moving back into that lane being bounced around the cab.A.Yes.Q.Immediately following your movement to the left on the road, the next thing you can remember is being bounced around in the cab as a result of the collision.A.Yes. I changed gears in between time, then it happened. Q.I’ll ask you again, I know you said yes before but I’m going to ask you this again. Was the next thing you remember after your movement to the left being bounced around in the cab.A.Yes. Mr Youngman described having on a number of prior occasions travelled in his vehicle in the left lane passing the pole without encountering any difficulty. In the course of cross-examination on this topic he stated:Q.But this is the only occasion that you can recall, isn’t it, when you have seen fit to move your vehicle towards the left as you were passing that pole, correct. A.Yes.Q.There’s no other difference between the other times, three or so times a week, when you’ve been past that pole, the only difference on this occasion is that you had happened to have been partly in the middle lane and you moved your vehicle back towards the left immediately before the collision occurred, is that correct.A.Yes.

Decision

Reasons for decision

GRAY J
The “maxim, rule or doctrine of res ipsa loquitur” was addressed in Government Insurance Office of NSW v Fredrichberg[20] where Barwick CJ summarised the following propositions as being binding upon the courts in Australia:[21] First, that the so-called "doctrine" is no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant; or perhaps, as it might more accurately, in my opinion, be expressed, where, in the opinion of the judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person. Second, that a case in which this can properly be said should be allowed to go to the jury whether or not there is evidence of specific acts or occurrences which could be found to be negligent but that no presumption of any kind in favour of the plaintiff thereby arises. That the occurrence affords evidence of negligence does not merely not alter the onus which rests on the plaintiff to establish his case on the probabilities to the satisfaction of the jury, but does not give the plaintiff any entrenched or preferred position in relation to the decision by the jury of that question. I quite realize that it may be attractive to the mind to conclude that, because the jury is allowed to draw an inference of negligence from the occurrence for the reason that they are at liberty to think that it was not likely to occur without a want of care on the part of the defendant, the inference of negligence must be drawn by them if the ground upon which it may be drawn is not displaced by other evidence explaining the occurrence. That line of thought seems to me to have found favour with English Courts and to have resulted in the creation by the decisions of those Courts of a presumption of fact in favour of a plaintiff in such circumstances. But this Court has been unable to accept such reasoning and the law is otherwise in Australia. In my opinion, the jury are not bound either to conclude that such an occurrence was unlikely to occur without negligence on the part of a person in the defendant's position or to draw the inference that it did in fact occur in the case before them because of the negligence of the defendant. All that has happened, in my opinion, at the point in the hearing of a case at which the judge rules that there is evidence of negligence on the part of the defendant furnished by the occurrence itself is that the judge is satisfied that a jury would be entitled to conclude that such an occurrence in the ordinary affairs of mankind is not likely to occur without negligence on the part of a person in the situation of the defendant. For the rest, it is a question for the jury whether they think the occurrence unlikely in this sense and, if so, whether in the particular case they will be satisfied that there was in fact relevant negligence.Similarly, in Nominal Defendant v Haslbauer,[22] Barwick CJ explained:“… to apply this principle (of res ipsa loquitur) is to do no more than to shift the burden of proof. A prima facie case is assumed to be made out which throws upon him (that is, the defendant) the task of proving that he was not negligent.” …… Needless to say, it was not made, either by Lord Simonds or by the Privy Council, as a statement of law. It ascribes no legal operation to res ipsa loquitur. It simply describes the position in which a defendant finds himself in fact, when confronted by evidence which, if it stands alone at the end of the case, will raise an inference of negligence against him and so will discharge the plaintiff's burden of proof. The position is that the defendant will lose the case unless he adduces evidence which persuades the jury not to infer one of the facts which would be wrapped up in an inference of negligence, namely that the situation of the defendant at the material time possessed particular features and that his conduct in relation to it was less careful and skilful than that which an ordinary person would have considered reasonable in view of those features. In light of the available evidence, the doctrine of res ipsa loquitur supports the inference that the collision occurred because the driver moved his vehicle too far to the left and came into contact with the pole. [20] Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403.[21] Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 413.[22] Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 464, quoting with approval Swan v Salisbury Construction Co Ltd [1966] 1 WLR 204 at 212.Conclusion

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.