Dang v Briggs No. Scciv-02-399

[2002] SASC 158

DANG v BRIGGS
[2002] SASC 158

1. BLEBY J:             This is an appeal from a decision of the civil jurisdiction of the Magistrates Court. The appeal is brought as of right pursuant to s 40 of the Magistrates Court Act 1991 and Supreme Court Rules 96B.04 and 97.17. The case concerns a claim and counterclaim for property damage arising out of a collision between a Toyota Celica motor car driven by the appellant, Mr Dang and a Honda VFR 750 motorcycle ridden by the respondent, Mr Briggs.

2. The collision occurred at or near the eastern corner of Pirie Street and Hindmarsh Square, Adelaide at about 11.10 pm on 3 November 2000. The magistrate held that the appellant car driver was fully responsible for the accident and gave judgment for the respondent for the full amount of his agreed damages of $9130.  He also dismissed the appellant’s counterclaim. He awarded costs to the respondent. The appellant now appeals against that decision and those orders.

3. It was only liability that was in issue at the trial.  The quantum of the respondent’s claim was agreed at $9130 and of the appellant’s counterclaim, at $1613.44.

4. The appellant gave evidence at the trial that he had driven north along Pulteney Street and then turned left into Pirie Street. He had two passengers in the car.  He was looking for a place to park.  They wanted to go to a cafe on the south-eastern corner of the intersection of Pulteney Street and Pirie Street.  He said that having entered Pirie Street he did not stop, but remaining in the centre of the southern carriageway, proceeded west along Pirie Street. Approximately 5 seconds before the collision he put on his right turn indicator to signal his intention to turn right into the western roadway of Hindmarsh Square.  Just before the collision, the appellant said that he glanced over his right shoulder and saw the respondent’s motorcycle.  He immediately braked and came to a halt in an attempt to avoid the collision but it was too late.

5. I should add that on the southern side of Pirie Street, the road surface is marked with spaces for parallel parking.  Adjacent to the parking spaces there is a marked bicycle lane but there are no further traffic lane markings and no centre line markings opposite what is a wide opening to the western roadway of Hindmarsh Square.  The traffic lane for west bound traffic is substantially wider in Hindmarsh Square than it is west of the western curb alignment of Hindmarsh Square.

6. The respondent had been heading south along Pulteney Street.  He stopped at the traffic lights, and after waiting for north bound traffic to clear, he turned right into Pirie Street. In a relatively short distance he reached a speed of 40 to 50 km/h as he travelled west along Pirie Street.  He said that his motorcycle remained in first gear. He noticed the appellant’s motor vehicle parked, he said, about 1 m from the kerb with its lights on.  It was not in a marked parking bay or area but was near the opening of Naylor Street into Pirie Street.  Naylor Street is a narrow street which travels south from that part of Pirie Street forming the southern boundary of Hindmarsh Square.  The respondent said that as he approached the appellant’s vehicle, the latter moved to turn right from the kerb.  The respondent said that he swerved to try to avoid the car but collided with the right front panel of the vehicle.  He did not apply the brakes but eased off on the throttle as he tried to pass the car.  He noticed the car’s right front indicator flashing only as he was about to hit the car.

7. There were two other witnesses who gave evidence at the trial.  Mr Pham, who was a passenger in the appellant’s car, gave a version of events largely consistent with the appellant’s account but he said nothing about the operation of the trafficator.

8. The other witness was a Mr Mieglich.  He was sitting in the driver’s seat of his car which was ranked on the southern side of Pirie Street.  In his evidence-in-chief he placed his car just west of Naylor Street, but in cross-examination he conceded that he may have been just east of Naylor Street.  It was his evidence that the appellant’s car stopped about 1.5 to 2 m to the right of his vehicle and about 2 m in front of his car.  The appellant’s car began to turn to its right as he heard the respondent’s motorcycle approaching from behind.

9. An appeal such as this one is by way of re-hearing:  Supreme Court Rule 97.17.  In this case that means that it is a re-hearing based on the evidence before the magistrate.  It is an appeal on fact as well on law and this Court may draw its own inferences from the evidence led:  Warren v Coombes (1979) 142 CLR 531. However, where disputed evidence and questions of credibility arise, this Court will generally accept the findings of the magistrate unless it can be shown that he palpably misused his advantage of seeing the witnesses, or unless he has acted on evidence which is inconsistent with other facts incontrovertibly established, or where the finding is glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472.

10. The magistrate accepted Mr Mieglich’s evidence that the appellant stopped his car in the carriageway of the westbound traffic in Pirie Street, in a position  which the magistrate described as ‘double ranked’, and that he was there for long enough to change gear and indicate a right-hand turn before commencing his turn to the right.  The magistrate appears to have accepted that the appellant indicated his intent to turn to the right for about five seconds before doing so, and that he was probably stationary for about that period.  He found that the point of impact was approximately 50 m west of the western curb alignment of Pulteney Street.

11. All of those findings were open to the magistrate, and neither party suggested that they were not. However the magistrate proceeded on a number of assumptions as to the respondent’s speed at various parts of his journey, none of which could be found with such degree of accuracy as to produce the conclusion that the magistrate reached, namely that the respondent was 2.5 seconds away from the appellant’s vehicle when the appellant began his signal, and that allowing for reaction time, he was less than two seconds away before he could and did take evasive action.

12. His reasoning to that degree of accuracy was flawed, because over a distance of what the magistrate found to be about 60 m, the respondent accelerated, on his own evidence, to between 40 and 50 km/h, a speed which was uncertain at any given point.  Yet he calculated the respondent’s position and distance from the point of impact at particular times, by reference to the respondent’s average speed over the whole distance.

13. His Honour concluded that either the appellant’s warning time was inadequate, or that his look-out before he moved off was inadequate, and that he was therefore negligent.  He found the plaintiff not guilty of contributory negligence, as his maximum speed reached was well below the statutory speed limit of 60 km/h, and that he could rely on the fact that a stationary vehicle in the position of the appellant’s vehicle would give greater warning than it did. He failed to apportion any liability to the respondent.

14. In my opinion, it was open to the magistrate to find that the appellant was negligent and that he was correct in doing so.  On the magistrate’s finding, the appellant stopped the vehicle in a dangerous position in a busy thoroughfare.  On the appellant’s own admission, he was looking for a car park.  His vehicle was not as close as possible to the actual or imagined centre line of the carriageway, such as to indicate to overtaking vehicles, that they should pass to his left.  That observation is confirmed by the course taken by the respondent.  He expected to be able to pass normally on the appellant’s right, not on the appellant’s left.

15. I infer that the appellant was concentrating more on looking for a park than on moving vehicles around him.  Although he may have signalled a right-hand turn, from his position on the road he had no right to turn his vehicle until the road behind him was clear.  His look-out was plainly defective because he began his turn into the path of the plaintiff’s on-coming motorcycle. 

16. However in my opinion, the magistrate erred in failing to apportion any liability to the respondent.  As the respondent turned into Pirie Street, he should have seen the appellant’s car slowing down or stationary in the carriageway.  He should have been alert to the uncertainty of movement of the appellant’s car and he should have adjusted his speed accordingly.

17. It is no justification to say, as the magistrate said, that he was not negligent so long as he remained below the speed limit. He did not adjust his speed to cope with the possible emergency presented by the appellant’s car.  Given the magistrate’s finding as to the appellant’s right-hand turn signal, and the respondent’s own evidence that he did not see the indicator until almost at the point of impact, the magistrate also erred in failing to hold that the respondent’s lookout was inadequate.  In my opinion, the respondent should have seen the indicator before he did.  His own lookout was defective.  He failed to steady his motorcycle to cope with a possible impending emergency.

18. In my opinion, the appellant must bear the major portion of the responsibility for the collision and I would apportion liability 70 percent to the appellant and 30 percent to the respondent.  It follows that the orders of the court will be, subject to hearing counsel as to costs:

    1.Appeal allowed.

    2.Set aside the judgment of the Magistrates Court for the sum of $9130 in favour of the plaintiff and the order for costs.

    3.Substitute for that judgment, a judgment for the respondent on the claim in the sum of $6391 and for the appellant on the counterclaim, in the sum of $484.03.

19. I will hear counsel now as to the costs both of the trial before the magistrate and of the appeal.