Crosthwaite v Dewit - [2017] QCATA 91

CITATION:

Crosthwaite v Dewit [2017] QCATA 91

PARTIES:	Darren Crosthwaite (Applicant)
V
Andrew Dewit (Respondent)
APPLICATION NUMBER:		APL384-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

9 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The tribunal’s decision is set aside and an order that the respondent pay the applicant $2,214.93 and $315.70 filing costs is substituted.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – WHERE FACTS IN DISPUTE – where the applicant sought leave to appeal against a tribunal decision dismissing the claim of $4,429.86 for repair costs – where the applicant and respondent versions of events irreconcilably conflicts – where the grounds of appeal relate to findings or inferences of fact – where the appellate powers can be exercised to disturb an error of fact if findings or inferences are inconsistent with compelling contrary facts or inferences – where even on his own case the respondent should contribute 50 per cent per cent of the liability for the cost of repairing the damage to the applicant’s vehicle.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 13, 32, 146, 147

Abalos v Australian Postal Commission (1990) 171 CLR 167
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
State Rail Authority of NSW v Earthline Constructions Pty Ltd(In Liq) (1999) 73 ALJR 306
Warren v Coombes (1979) 142 CLR 531
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

REASONS FOR DECISION

In hot dry conditions on 17 March 2016 cars driven by the parties collided with each other as they were both travelling north east direction towards a traffic light controlled intersection but intending to turn left into View Street off Cairns Western Arterial Road in Brinsmead. The front left hand side and bull bar of the applicant’s SVU was damaged by the impact as was the rear to middle right hand side of the respondent’s ute.[1] There were no eye witnesses or police in attendance at the scene.
[1]Transcript at 1-19: 20.
The applicant’s claim of $4,429.86 for repair costs was dismissed by the tribunal. He now wants that decision reversed to avoid what he calls the financial injustice of having to foot the repair bill personally. Despite the statement to the contrary in Part E of the Form 39 leave to appeal is needed.
The accident site
Western Arterial Road has two through lanes in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCATA 91
Decision Date: 9 August 2017

CaseChat Overview and Summary

Crosthwaite v Dewit involved a dispute over repair costs following a vehicle collision. The applicant sought to appeal a tribunal decision that dismissed their claim for $4,429.86 in repair costs. The applicant argued that the tribunal's findings were inconsistent with compelling facts, and that they should not bear the entire cost of the repairs. The respondent, on the other hand, submitted that the tribunal's findings were open and that the applicant failed to meet their burden of proof.

The legal issue before the court was whether the appellate powers could be exercised to disturb the tribunal's findings or inferences of fact. The court found that even on the applicant's own case, the respondent should contribute 50 per cent of the liability for the cost of repairing the damage to the applicant's vehicle. The tribunal's findings that the collision was caused by the applicant's failure to see the respondent already in the lane to his left before he crossed into it were inconsistent with two key facts asserted by the applicant. The first was that the respondent was in the same lane following behind the applicant when he passed the Mobil Service Station about 200 metres from the intersection and about 95 metres from the start of the turn left only lane. The second was that the point of impact was at the very commencement of both the turning lane and the bike lane. The tribunal failed to fully appreciate the applicant's explanation about the relative positions of the cars shown in Annexure B at 1-11:10-30.

The tribunal granted leave to appeal and allowed the appeal. The tribunal's decision was set aside and an order that the respondent pay the applicant $2,214.93 and $315.70 filing costs was substituted.

Orders

Orders of the court

THE APPEAL TRIBUNAL ORDERS THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The tribunal’s decision is set aside and an order that the respondent pay the applicant $2,214.93 and $315.70 filing costs is substituted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent submits in reply that the:·tribunal had the benefit of seeing and hearing the evidence from both parties and preferred the respondent’s account.·tribunal’s findings were open on the facts.·applicant wrongly hypothesized that the respondent attempted to enter the left hand lane from the shoulder of the road.·appellant was not keeping a proper lookout because he clearly was not aware of the proximity of his vehicle prior to the collision and must be equally ignorant of its movements prior to the collision. Accordingly, his asserted beliefs about that is not based on remembered events but misconstruction.·appellant did not meet his burden of proof for the reasons the tribunal gave.·applicant’s submission that he was not required to keep a proper look out should be interpreted as an admission that he was not doing so contrary to every driver’s legal duty.Analysis and conclusions What parties and witnesses ‘remember’ is not always what actually happened. The tribunal inferred that the collision was caused by the applicant’s failure to see the respondent already in the lane to his left before he crossed into it based on the relative position of the cars on the roadway before, at and after impact. The tribunal decided that the cars would not have collided with each other if the applicant had seen the respondent’s car in the process of passing him in the adjacent lane. These findings are inconsistent with two key facts asserted by the applicant that are inherently credible and impliedly confirmed (or not denied) in cross-examination by the respondent. The first is that the respondent was in the same lane following behind the applicant when he passed the Mobil Service Station about 200 metres from the intersection and about 95 metres from the start of the turn left only lane. The second is that consistently with the applicant’s evidence the sketch of the scene at the time of the accident he submitted with his insurance claim on 15 March 2016 and reproduced in Annexure B to his 6 July 2016 affidavit (Exhibit 2) the respondent identifies the point of impact as being at the very commencement of both the turning lane and the bike lane. On this basis the respondent claims that he activated his indicator, crossed over the bike lane at 20 kilometres per hour and to be fully established in the turning lane at impact is improbable. He is much more likely to have come from the applicant’s far left moving to his right into the turning lane as the applicant was doing the same at the same moment only in reverse. Critically, the tribunal failed to fully appreciate what the applicant was trying to explain about the relative positions of the cars shown in Annexure B at 1-11:10-30. His point was that as the cars are solid not intangible objects the diagram was misleading and instead of them notionally overlapping each other the respondent’s car would have been 20 per cent further to the left putting both passenger side wheels on the shoulder.

Ratio Decidendi

Legal Principle Established

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