Congdon v Mercer No. Scgrg-98-1613 Judgment No. S16

CONGDON v MERCER
[1999] SASC 16

Magistrates Appeal: Civil

PERRY J (ex tempore). This is an appeal from the decision of a magistrate sitting in the civil jurisdiction of the Magistrates Court at Elizabeth.

The appellant, who was the plaintiff in the court below, claimed damages for injuries suffered by the appellant as a result of a collision which occurred at or near the intersection of Main North Road and Princess Street, Willaston on 13 September 1994. The quantum of the appellant's claim was agreed and the matter went to trial on the issue of liability only. In a reserved decision the learned trial magistrate apportioned liability on the footing that the plaintiff was 70% and the defendant 30% responsible for the collision. In the result he gave judgment in favour of the appellant against the defendant for 30% of the agreed damages, which worked out at $4,256.13. It is from that judgment that the appeal is brought.
At the trial there were only two witnesses, namely, the appellant and the respondent.
The appellant's evidence was that on the morning of the collision, which occurred at about 11.15 am, he had visited his girlfriend who lived in Davies Street, not far from where the collision occurred. The appellant lived at Gawler. After leaving his girlfriend he rode off on his bicycle intending to return home to Gawler. To do so he travelled along Davies Street roughly south, and turned left into Princess Street. On the relevant side of the junction of Davies Street and Princess Street there is a vacant allotment. The appellant cut across that allotment, there being a defined track running diagonally across the allotment, which he traversed. This brought him out onto the footpath of the northern side of Princess Street where he turned left, riding along the footpath for a short distance in a south easterly direction towards the intersection of Princess Street and Main North Road.
When he came to the first driveway in Princess Street after he entered the footpath of Princess Street, he diverged to his right and took up a position on the carriageway of Princess Street, still proceeding towards Main North Road. At that time the defendant was driving his 1978 Ford sedan motor car in the same direction, that is, south east along Princess Street. To start with, he was further back in Princess Street than the appellant, whom he first noticed riding his bicycle diagonally across the vacant allotment. He passed the appellant after the appellant had come out onto the carriageway of Princess Street. In doing so, he sounded his horn and swerved to the right, overtaking the bicycle at the same time. Both vehicles then maintained their course of travel in a south easterly direction in Princess Street approaching the intersection with Main North Road.
From evidence which is not in dispute, the learned trial magistrate found that the distance from the place where the appellant entered the carriageway of Princess Street to the intersection, by which I assume he means the nearest part of the intersection with Main North Road, was of the order of 157 metres. But the accounts given by the appellant and the respondent respectively of the courses taken by their vehicles along Princess Street and up to the point of impact differed markedly.
The evidence of the respondent was that his action in sounding the horn and swerving to the right when he first came upon the appellant was instinctive, and he denied, as was asserted by the appellant, that he swerved towards the appellant. He then says that after passing the appellant he looked in his rear vision mirror and saw the appellant make what he described as an obscene gesture by raising a finger of his hand. The respondent proceeded on and when he was at a point which he estimated as some 50 feet short of the intersection he indicated his intention to turn to the right and pulled the car towards the centre of the road. Before doing so he glanced in his rear vision mirror at which stage he says he saw the appellant behind him pedalling rather fast.
When he reached the intersection he stopped, as there was give way sign, and there was a vehicle coming from his right proceeding across the intersection. When that vehicle had cleared the intersection, he looked again in the rear vision mirror but did not see anything of the appellant. He then commenced his right hand turn. When he was about half way or so into the turn the appellant suddenly appeared across the front right hand corner of the respondent's vehicle. He says the bicycle appeared to be travelling fast, in the region of 12 to 15 miles per hour. His evidence was:
“Instinctively I lifted my foot from the accelerator and transferred it to the brake but unfortunately the time lapse was such that the car actually touched the rear wheel of the cycle.”
He went on to estimate that at that stage and at the point where the collision occurred he was approximately three quarters into his turn, the front of his car being roughly in the centre of Main North Road and the rear in the left hand carriageway of Main North Road for vehicles travelling north. He says that he then felt the wheel of the car strike an obstruction which he knew to be the cyclist or his cycle. The car stopped, he already had his brake on. As he got out and started to walk around the front of his car the appellant called out, “Get this fucking car off me”, whereupon the respondent re-entered his car and reversed. Before he reversed he believed that the rear wheel of the bicycle was caught under the near side front wheel of the car. Another motorist stopped and helped the appellant to the side of the road.
As I have said, the appellant gave a very different account of the matter. He says that after he emerged onto the carriageway of Princess Street he saw the respondent's car approaching and that the respondent sounded his horn and “looked to be swerving towards me”. The car then passed him and he continued to ride along Princess Street towards the intersection. He says that as he did so he slowed down and moved towards the right hand side of the left lane in order to make a right hand turn.
Although the evidence is scanty as to just what lanes there were, I infer that there were two lanes for traffic proceeding in the direction in which the appellant and the respondent were moving, or at least space for two vehicles on that side of the road. From the photographs it does not appear that there was a clearly defined line separating the lanes.
The appellant says that as he approached the intersection he saw that the Ford was stationary, and he swung out in order to pass the Ford on the driver's side. He says that the Ford was stationary in a position in which there was about a metre separating the off side of the Ford in the centre of the road, that is the centre line of Princess Street. He passed the Ford in that gap, that is maintaining a position to the left of the centre line. As he did so he does not deny that he might have abused the respondent by swearing at him.
The respondent on the other hand put his position, that is the respondent's position, as near as practicable to the centre line with the result that for the appellant to have passed him, the appellant must have been on his incorrect side of Princess Street. Be that as it may, the appellant's evidence was that he did not stop but continued on into the intersection completing his right hand turn. He then travelled along Main North Road maintaining a position about a metre inside the centre line when, at a point which he estimates to be about 20 metres beyond the intersection, the respondent's car collided with the rear of the bicycle throwing him down onto the roadway and trapping him underneath the front of the car.
I should say that the accident occurred at a time of fine, clear conditions.
The learned trial judge preferred the evidence of the respondent to that of the appellant. On the respondent's version of the accident the appellant not only passed the respondent on the wrong side, but cut him off during the course of the turn which both vehicles proceeded to make into Main North Road.
The learned trial magistrate put it this way:
“It is evident from my findings that when the plaintiff entered the intersection he was endeavouring to do three things at or about the same time. He was turning right, he was overtaking the Ford which was also turning right on the driver's side of the Ford and he was addressing a remark or remarks to the driver of the Ford as he was doing so. In those circumstances it is quite conceivable that the plaintiff may have misjudged his course and inadvertently cut across the path of the Ford with the result that the front bumper bar of the Ford came into contact with the rear wheel of the bicycle. The bicycle and the plaintiff then fell onto the roadway into the path of the turning left front wheel of the Ford which ultimately pinned them to the ground”.
If the evidence of the respondent is to be preferred, in my opinion that central finding as to the immediate circumstances of the collision cannot be criticised. A separate question of course also arises, raised in the amended notice of appeal, as to the correctness of the apportionment of liability between the appellant and the respondent. Mr Tothill of counsel for the appellant contended that even on that account of the matter, the apportionment should in effect be reversed or thereabouts. For reasons which I will come to, I reject that submission.
There are various passages in his judgment in which the learned trial magistrate explains the basis upon which he prefers the evidence of the respondent over that of the appellant.
It is, of course, necessary for me to reassess the evidence and come to my own view as to the outcome, giving due weight to the advantage held by the learned trial magistrate in seeing and hearing the witnesses.
Of course, if the learned trial magistrate's preference for the evidence of the respondent over that of the appellant was based upon his assessment of the probabilities having regard to objective facts which he finds to be established, I would be in as good a position as the learned trial magistrate to address the question of credibility.
The magistrate's observations as to his views as to the credit of the two witnesses are not entirely clear at least to the extent to which his reasons indicate the basis of his conclusion in that respect. However, on balance I think it right to say that it would be impossible to dissociate the view which he ultimately reached in that regard from his personal assessment of the two parties as witnesses.
He said for example (page 12):
“Having regard to my earlier findings and to the probabilities material to an assessment of the conflicting evidence in relation to the first issue (which was whether the appellant passed the Ford when it was stationary) I think it more probable than not that the defendant's evidence was more reliable than the plaintiff's.”

Later in his judgment he said:

“As a result of my assessment my confidence in the reliability of the plaintiff's evidence on this issue is undermined. I reject his evidence where it conflicts with the defendant's evidence.”

Elsewhere he said:

“Again, the probabilities material to the assessment of the conflicting evidence indicate to me that the defendant's version of events was more probable and reliable than the plaintiff's version.”

Elsewhere again he says:

“As a result of my assessment my confidence in the reliability of the plaintiff's evidence was seriously undermined, and he again describes the evidence of the defendant as truthful and reliable.”

Importantly he says later again (page 16):

“In my assessment the defendant was a truthful witness and his evidence (on the question whether the respondent swerved towards or away from the appellant) was reliable.”

He concludes as to this aspect of the matter with the observation:

“That case (of the defendant) was supported by the evidence of the defendant himself who, in my assessment, was a credible and reliable witness.”

So that I infer from those passages that at least in part his preference for the respondent's evidence was based upon his assessment of the respondent as a witness rather than as to more objective matters. Even if I am wrong in that, I would reach the same conclusion, having regard to the objective probabilities and the two accounts given by the parties as to the circumstances of the collision.
In his very capable and comprehensive submissions on behalf of the appellant, Mr Tothill advanced the argument in connection with the central question of credit that, having regard to the principles which find expression in Jones v Dunkel,[1] the failure by the respondent to call as a witness as the trial his wife, who was a passenger in his car, should have led the magistrate to the view that the appellant's evidence should be preferred.
[1] (1959) 101 CLR 298.
The significance of the respondent's wife's absence from the witness box was not dealt with in an entirely satisfactory manner during the course of the hearing. It is perfectly correct, as Mr Tothill submitted, that to avoid an inference that a witness' evidence would not assist the case of a party who fails to call a witness, the reason why the witness is not called should be established in the evidence.
Ordinarily the obligation to establish the reason falls on the party who fails to call a witness, in this case the respondent. But he gave no evidence-in-chief as to that aspect of the matter, and neither was he cross-examined about it. One would have expected cross-examination of him to the effect that his wife was in the front seat and in a position to see as well as the respondent was what was happening, and that there was no reason why she could not be called. There was no such cross-examination and at the end of the evidence there was no explanation or ground prepared by either party as a basis for the submission based on Jones v Dunkel.
I think that Mr Tothill is right when he submits that in those circumstances the situation was one in which the inference adverse to the respondent's case could have been drawn, but every case differs in its circumstances. Just how strong an inference to that effect could be drawn depends upon a number of factors. The learned trial magistrate dealt with this aspect of the matter in this way:
“Mr Tothill submitted that in the absence of an explanation of that failure (a failure to call the defendant's wife), an explanation supported by evidence, I should not act on the explanation which the defendant's counsel, Mr Archer, offered from the bar table. In the circumstances Mr Tothill urged me to draw the inference. According to the rule a court may, not must, just draw an inference which in this case would be an inference that the evidence of the defendant's wife would not have helped the defendant's case. That is not the same as saying that her evidence would have hurt the defendant's case. That case was supported by the evidence of the defendant himself who in my assessment was a credible and reliable witness. Any adverse inference to be drawn from the failure to call his wife would not have significantly undermined my confidence in the reliability of his evidence in relation to those issues or have affected those findings.”
It seems to me from the last sentence in the passage which I have just cited that what the learned trial magistrate was saying was that any adverse inference to be drawn from the absence from the witness box of the respondent's wife did not operate to counteract his preference of the evidence of the defendant over that of the plaintiff, having regard to his assessment of the respondent as a credible and reliable witness.
In my opinion, the learned trial magistrate did not fall into error in approaching the matter in that way. Clearly, he took into account that the respondent's wife was not called, but was not prepared to hold that circumstance to be so significant in the case overall as to divert him from the finding which he made as to the respective credibility to be attached to the two witnesses.
Before leaving this aspect of the matter, I have taken into account the submission put by Mr Tothill that the learned trial magistrate criticised the evidence of the respondent in the context of assessing the degree of culpability of the respondent for the purposes of effecting an apportionment, and he said that the respondent's evidence on the topic of when he looked in the rear vision mirror:
“Was based more on his reconstruction of events than on his accurate recollection of what he actually did.”
But it seems to me that the adverse comments which he makes as to the defendant's evidence in that respect is simply an example of the fact that he did not accept the evidence of the respondent on all aspects of the matter. It is not uncommon to find that a court is prepared to accept the evidence of a witness in part, but rejects it as to other parts. I do not read into his rejection of the respondent's evidence as to that aspect of the matter any inconsistency with his overall finding that generally speaking he accepted the account of the respondent in preference to that of the appellant as to the immediate circumstances leading up to the collision.
In the result, it seems to me that given the fact that I am not prepared to interfere with the central findings made by the learned trial magistrate as to the respective courses taken by the two vehicles leading up to the collision, there would be no possible basis for disturbing his finding that the appellant was guilty of negligence. In my opinion there was a serious act of negligent driving in cutting off the path of the respondent's vehicle while both vehicles were in the course of executing a turn into Main North Road. The circumstances smack of a deliberate intention by the appellant to “pay out” the respondent for some perceived slight or provocation caused by the initial encounter between the two vehicles when the respondent first passed the bicycle and swerved and blew his horn while doing so. Some support for that view is given by reason of the conduct of the appellant in making a rude gesture and in mouthing some obscenities as he passed the respondent at or near the intersection.
The only other question is that raised by way of amendment at the outset of the appeal. That is the appellant's challenge to the apportionment effected by the learned trial magistrate. As to that aspect of the matter Mr Tothill argued that a car is a much more potent instrument in its propensity to cause damage, and that the learned trial magistrate failed to take that factor into account in assessing the respective degrees of culpability.
The learned trial magistrate's finding of negligence against the respondent was based upon his conclusion that the respondent failed to look into the rear vision mirror of the Ford just before he started to move off into the intersection. He specifically found that the respondent did not look in his rear vision mirror before he started to move off into the intersection. As a result the respondent robbed himself of the opportunity of making himself aware of the proximity of the bicycle and the course which the appellant was taking, matters which if he had realised at an earlier stage may well have avoided the collision which occurred later.
In support of his contention as to this aspect of the matter Mr Tothill referred to a passage in Balkin & Davis The Law of Torts.[2] The learned authors state in the passage which he cited:
“It has been said that a finding of apportionment is a finding upon a question not of principle or positive findings of fact or law but a proportion of balance and relative emphasis and of weighing different considerations. It involves not only a comparison of culpability ie of the degree of departure from the standard of care of the reasonable man ...... but also a comparison of the relative importance of the acts of the parties in causing the damage. The whole conduct of each negligent party in relation to the circumstances of the accident must be subject to this comparative analysis. Obviously the significance of the various elements involved in such an examination will differ from situation to situation. Where a collision occurred at night between two motor vehicles travelling in opposite directions while each was overtaking a vehicle near the brow of a hill and each had pulled out to the centre of the road it was said that the speed, size and weight of the vehicles in contributing to the severity of the damage should also be taken into account, not merely those factors which contributed to the collision. Accordingly, where the collision is between a semi-trailer or other juggernaut and a bicycle, even if the driver of each made an equal contribution to causing the collision, it would nonetheless be just and equitable to apportion less responsibility to the rider of the bicycle. A similar approach is manifest in the train of authority in running down cases, which has tended to hold the motorist, who is capable of doing considerable damage to the pedestrian, more capable than the pedestrian.”
[2] Butterworths (1991) at pages 356 to 357.

It has to be accepted that consistently with the view which finds expression in that passage, in determining the apportionment of responsibility, some reference can and should be made to and allowance given, for the capabilities of each of the vehicles to cause damage. But I do not think that it can be put in such an absolute way as Mr Tothill suggested when he submitted that greater culpability applies to a vehicle most likely to cause damage to others. That is not invariably so. A cyclist may for example run through a red light and on any account of the matter be wholly or substantially to blame for a collision with a vehicle lawfully making its way across the intersection, even if that vehicle was to be a “semi-trailer or other juggernaut”.
Here, it seems to me that the apportionment was predicated upon a finding that the appellant has deliberately cut across the path of the respondent's motor car, as I have said, in some continuation of an attempt to pay the respondent out in some way. That was a manifestly serious and reckless manoeuvre. Having regard to the overall circumstances of the case, in my opinion there is no basis made out to interfere with the conclusion reached by the learned trial magistrate as to this aspect of the matter and in particular, in holding the appellant 70% liable for the resultant collision.
The appeal is dismissed.

[After hearing the parties as to costs.]

There will be an order that the appellant pay the respondent's costs of and incidental to the appeal, to be taxed.

JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1959) 101 CLR 298.
Butterworths (1991) at pages 356 to 357.

[1999] SASC 16

18 January 1999