Cummins v Scholer
[2006] VSC 510
•31 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 10046 of 2005
| JOHN CUMMINS | Appellant |
| v | |
| FALK SCHOLER | Respondent |
---
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2006 | |
DATE OF JUDGMENT: | 31 July 2006 | |
CASE MAY BE CITED AS: | Cummins v Scholer | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 510 | |
---
Section 109 Magistrates’ Court Act 1989 appeal – negligence – motor vehicle collision – Rule 62 Road Rules – finding open to Magistrate – appeal dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J A Brett | Hoyle Da Silva |
| For the Respondent | Ms F A Marks | Ligeti Partners |
---
HIS HONOUR:
This is an appeal pursuant to s.109 Magistrates' Court Act 1989, from a decision made in the Magistrates' Court of Victoria sitting in Melbourne and constituted by Mr Braun, Magistrate, on 21 November 2005.
The order appealed against was that the claim below made by the appellant/plaintiff was dismissed and that on the counterclaim the appellant pay the respondent/defendant the sum of $15,975.81 together with interest of $441.63 and costs of $3,473.
In essence, the questions of law upon which the appeal is brought are whether it was open to the learned Magistrate to find that the appellant/plaintiff was guilty of negligence and that the respondent/defendant was not guilty of any contributory negligence, when the Magistrate found that the accident occurred at a collision controlled by traffic lights, both sets of which were amber. The respondent was making a right-hand turn and the appellant was proceeding straight ahead and pursuant to Rule 62 Road Rules, the driver turning right must give way to any oncoming vehicle travelling straight ahead.
The grounds of appeal are that the learned Magistrate erred in law in finding that on the evidence the appellant was guilty of negligence and failing to find the respondent guilty of negligence and in place of the order from which the appeal is brought, the appellant claims an order that the respondent pay to the appellant the sum of $6,904.84 together with interest and costs and order that the respondent's counterclaim be dismissed and alternatively, that the proceeding be remitted to the Magistrates' Court.
The notice of appeal was filed on 20 December 2005 and by amended notice undated on the court file the proceeding proceeds as follows. The questions of law upon which the appeal is brought are, according to the amended notice:
(1)Whether it was open to the learned Magistrate to find that (a), the appellant was guilty of negligence and (b), the respondent was not guilty of any contributory negligence, in circumstances where the learned Magistrate found, or it was not in dispute, that: (i), the subject accident occurred at a collision controlled by traffic lights; (ii), the traffic lights applicable to each of the parties were amber; (iii), the respondent was making a right-hand turn; (iv), the appellant was travelling straight ahead; (v), pursuant to Rule 62 of the Road Rules, a driver turning right must give way to any oncoming vehicle that is going straight ahead.
(2)Whether the learned Magistrate erred in law in (a), finding the appellant guilty of negligence and/or (b), failing to find the respondent guilty of negligence which caused or contributed to the subject collision.
(3)Whether it was open on the evidence for the learned Magistrate to find that (a), the appellant was guilty of negligence and/or the respondent was not guilty of any negligence caused or contributing to the happening of the collision.
The grounds of the appeal, according to the amended notice, are
(1)That the learned Magistrate erred in finding (a), that the appellant was guilty of negligence and (b), that the respondent was not guilty of any contributory negligence in circumstances where the learned Magistrate found, or it was not in dispute, that (i), the subject accident occurred at a collision controlled by traffic lights; (ii), the traffic lights applicable to each of the parties were amber; (iii), the respondent was making a right-hand turn; (iv), the appellant was travelling straight ahead and (v), pursuant to Rule 62 of the Road Rules, a driver turning right must give way to any oncoming vehicle that is going straight ahead.
(2)The learned Magistrate erred in law in finding (a), that the appellant was guilty of negligence and/or (b), the respondent was guilty of negligence which caused or contributed to the subject collision.
(3)The Magistrate erred in law in finding that on the evidence the appellant was guilty of negligence and/or the respondent was not guilty of any negligence which caused or contributed to the happening of the subject collision.
Rule 62(c) Road Rules Victoria states:
"A driver turning at an intersection at traffic lights must give way to: ... (c), If the driver is turning right - any oncoming vehicle that is going straight ahead or turning left at the intersection (except a vehicle turning left using a slip lane.)"
The evidence given before the learned Magistrate on 21 November 2005, was constituted by the evidence of the two parties, Mr Cummins as plaintiff and Mr Scholer as defendant. Mr Cummins gave evidence that he was a building consultant by occupation, that on Thursday 17 February 2005, at about ten o'clock in the morning, he was driving his vehicle, a gold-coloured Nissan Pathfinder four-wheel drive, he being alone in the vehicle, from his home in Brighton to his work in Braeside. The weather at the time was good. He lived a few blocks away from the collision. He entered Dendy Street one block back from the collision and was proceeding eastwards, that is in the general direction of Braeside, when he entered the intersection with Hampton Street. The intersection of Dendy and Hampton Street was controlled by traffic lights. He stated:
"As I was approaching Hampton Street, maybe 20 or 30 metres, the lights were green."
He said he was proceeding at about 40 or 45 kilometres an hour. He further said:
"When I first turned into Dendy Street I think there was a car or maybe two cars ahead of me that were going to turn right into Hampton Street ... As I was coming into the intersection, crossed into the intersection, the lights turned to amber ... I noticed another vehicle approaching in - heading in the opposite direction but I wasn't quite sure where he was going ... I believe that I was just about to enter the intersection when I first observed the vehicle coming ... and he may have been one or two car lengths off the intersection.
Question from his counsel in evidence-in-chief: "When you first observed the other car, had it entered the intersection?" Answer: "I'm not certain about that." Question: "And what did the other car do?" Answer: "Well at the point of impact, I've observed, had noticed that the car was doing a right-hand turn."
A little later in evidence-in-chief, he said:
"I didn't realise that he was going to a right-hand turn in front of me."
His vehicle was damaged centre front and he believed the other vehicle was damaged on the passenger and centre side. The airbags in his vehicle did not deploy in the collision.
In cross-examination, the appellant said that he did not believe he was travelling more than 40 to 45 kilometres an hour and he asserted that he “was approaching the intersection" when Mr Cummins entered the intersection. That was all the evidence called on behalf of the appellant.
On behalf of the respondent, he was also called to give evidence and gave affirmed evidence that he was driving in a westerly direction, that is in the opposite direction on Dendy Street at ten o'clock on the relevant morning, his vehicle being a Holden Astra. Traffic was moderate. Just before the traffic lights proceeding in a easterly direction, that is east of Hampton Street, the roadway in the direction that Mr Scholer was proceeding creates a second lane; he was in the right-hand lane at the traffic lights, the lights were amber when he entered the intersection. He said: "I slowed down and stopped and eventually turned right on the late amber light." He further stated: "I was approaching the intersection waiting to make a right-hand turn and had indicated. There were cars from the other side, two cars I believe who were waiting also to make the right-hand turn from that direction ... I looked to try to see if any oncoming traffic was approaching." He said he was unable to see any approaching traffic other than the two cars that were waiting to do a right-hand turn across his path as he was waiting to do a right-hand turn across their path. He proceeded at the late phase of the amber light. He said: "I began to turn right as did the cars from the opposite side, the next thing I know there was a big impact." The other vehicle came from the side of the left-hand lane for that vehicle and struck the left corner of Mr Scholer's vehicle.
In cross-examination, Mr Scholer said: "I believe in the split second before the impact I was able to observe that it came from the left hand of the two lanes of Dendy Street. There were two cars still making a right-hand turn from that side of Dendy Street." Question in cross-examination: "Did you see it travelling in the left-hand lane at any point?" Answer: "No ... the split second before the impact occurred I observed the car coming to hit me and it was in the left-hand lane." He further said in cross-examination: "I believe I looked carefully", meaning looking at the oncoming traffic, the traffic coming from west to east. He also stated that he was unable to assert that there was excessive speed by the other vehicle as alleged in the defence below.
If this were a proceeding on an information against the respondent for breaching Rule 62 certain consequences could follow because the rule provides clearly:
"A driver turning at an intersection with traffic lights must give way to ... (c), if the driver is turning right - any oncoming vehicle that is going straight ahead ..."
However, the matter before the Magistrate and the appeal before me is a matter sounding in negligence, not a matter sounding in police law and the question before me as a matter of law, is whether it was open for the Magistrate to find as he did, on the question before him which was the question of negligence. In my view, it was open and clearly open, to the Magistrate to find as he did. True it is that Rule 62 provides in clear terms what it does provide and that on its face, the respondent did not give way to the oncoming vehicle. Plainly, the provisions of Rule 62 are relevant in this matter. However, this is a action in negligence and it was clearly open to the Magistrate on the material before him, to find that Mr Scholer entered the intersection in an appropriate way, stopped completely and had his indicator on and was waiting for the traffic ahead of him to clear before he turned right. He observed carefully the vehicle was in front of him; he did not observe the appellant's vehicle which was plainly further back at that juncture; he waited until a late stage of the amber cycle and commenced to turn right and immediately thereafter the collision occurred.
Clearly and on the other hand, it is evident and it was open clearly for the Magistrate so to find, that Mr Cummins did not keep a proper lookout as he approached the intersection. On the evidence it was plain, and it was open to the Magistrate to find, that Mr Cummins did not see the vehicle of Mr Scholer stationery in the intersection, did not see the indicators of the vehicle and either did not see the vehicle at all or saw it at an earlier stage before it had stopped. In my view it was plainly open to the Magistrate to find, as he did, that there was no negligence on behalf of Mr Scholer, given the care with which Mr Scholer had entered the intersection, put his indicators on and stopped and the limited view that he had; and it was clearly open for the Magistrate to find that there was negligence on behalf of Mr Cummins. The principles, which I shall not rehearse in detail and I will footnote these references in the judgment, are clearly stated in well-known authority Young v. Paddle Brothers Pty Ltd[1] and Taylor v. Armour & Co Pty Ltd[2]. In the latter case the court held in the language of the time that in the case of any question of fact, the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence, but rather confine itself to seeing
“whether there was evidence upon which a Magistrate, as a reasonable man, come to the conclusion to which he did come.”[3]
I find that the Magistrate, as a reasonable person, was fully entitled to come to the conclusion which he came to, critically for two reasons. One is because Mr Scholer stopped completely and had his indicator on and waited until the late phase of the light; and second, because Mr Cummins plainly did not see that fact.
[1](1956) V.R. 38 at 41 per Herring, CJ.
[2](1962 )V.R. 346.
[3]At 351 per curiam
In the circumstances accordingly, I dismiss the appeal. Costs will follow the event. I order first that the appeal be dismissed, and second that the appellant pay the respondent's costs of the appeal which sum no doubt can be the subject of agreement, and, if not, taxation.
[Following discussion]
The indemnity cost rule is a viable and significant rule, consonant with authority which Ms Marks has most helpfully rehearsed before me. It is a rule which in the proper case is used by the court to root out inappropriate use of court process. In the present case, I consider that the solicitors for the respondents have acted properly and responsibly throughout, as is evident by their letters and the clarity of them and Ms Marks has indeed relied upon their timeliness and their clarity and their reasonableness, all of which I agree with. Equally, I consider that the solicitors for the appellant have acted properly and responsibly in seeking to act on the client's instructions to litigate the issue which has come before this Court on this s.109 appeal.
The essence of the appeal was that Rule 62(c) would ordinarily set in train, if it were breached, some negligence on the part of the apparently offending party. For reasons I have stated I consider that in the holistic circumstances of this case, somewhat unusual as they are, that that rule does not avail the appellant of that beneficent consequence. However, I am far from persuaded that the bringing of the proceeding was egregious in any way and I consider that despite the clear terms of the letter which are relied upon by Ms Marks, this case does not fall within the proper principle of indemnity costs, which is a rule and function which ought to be exercised in the proper case but with appropriate prudence and restraint.
In my view the proper order is that the appellant pay the respondent's costs of the appeal on the ordinary party/party basis and I refuse the application that the appellant pay the respondent's costs of the appeal on an indemnity basis.
---
0
0
0