DANKEVICIUS v TransAdelaide - [2006] SASC 354

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DANKEVICIUS v TRANSADELAIDE & ANOR
[2006] SASC 354
Judgment of The Honourable Justice Debelle
22 November 2006
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES
Collision between tram and motor car - findings as to liability and apportionment - findings grounded on findings as to credibility of witnesses - whether grounds existed to set aside findings of fact - no ground to justify interfering with magistrate's apportionment of liability - appeal dismissed.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 7, referred to.
Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118, applied.
Browne v Dunn (1894) 6 R 67; Cocks v Sheppard (1979) 53 ALJR 591; Kambouridis v Heyn [2000] SASC 361; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Island Steel Pty Ltd (1985) 59 ALJR 492; Walton v Rowbottom (Von Doussa J, 17 September 1986, unreported), considered.

DANKEVICIUS v TRANSADELAIDE & ANOR
[2006] SASC 354
Magistrates Appeals: Civil

DEBELLE J. This is an appeal from a decision of a magistrate apportioning liability for a road accident in King William Street, Adelaide. The appellant is the plaintiff. I will refer to the parties as “plaintiff” and “defendants”.
At about 1.00 pm on 1 October 2002 a collision occurred between the plaintiff’s motor car and a tram in King William Street, Adelaide at a point opposite the Crown & Sceptre Hotel. The tram was one of those trams which run between the City of Adelaide and Glenelg. The tram consisted of two tram cars linked together. It is operated by the first defendant, TransAdelaide. The second defendant was the tram driver. The plaintiff instituted an action in the Adelaide Magistrates Court claiming damages for negligence from the defendants. The magistrate found that the plaintiff was 85 per cent responsible for the collision and the defendants were 15 per cent responsible. Damages had been agreed. The magistrate awarded the plaintiff damages according to that apportionment of liability. The plaintiff appeals against the findings on the question of apportionment.
There is a median strip in King William Street. Tramlines run on either side of that median strip. The tramlines do not prevent motor vehicles from driving on that part of the road where the tramlines have been laid. Indeed, that part of the road is also intended for use by motor vehicles. The median strip has breaks in it which enable vehicles to make a U-turn at points other than at intersections.
The evidence of the plaintiff as to how the collision occurred differed from the evidence of the tram driver. According to the plaintiff, she had been driving her car in a northerly direction along King William Street towards Victoria Square. She was intending to go the Crown & Sceptre Hotel. Her intention was to park in front of the Hotel. In order to do so, she was…

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.

Continue reading DANKEVICIUS v TransAdelaide

Details

AGLC: DANKEVICIUS v TransAdelaide [2006] SASC 354
Case: [2006] SASC 354
Decision Date: 22 November 2006

CaseChat Overview and Summary

In the case of Dankevicius v TransAdelaide, the plaintiff, Dankevicius, was involved in a collision with a tram operated by TransAdelaide. The dispute centred on the liability for the accident and the subsequent apportionment of damages. The case was heard in the Supreme Court of South Australia.

The primary legal issues before the court involved determining the respective liabilities of the parties and the credibility of the witnesses involved. The court had to consider whether the magistrate's findings on the credibility of witnesses and the apportionment of liability were justifiable and whether there were grounds to set aside the magistrate's findings.

The court found that the magistrate's findings were grounded on the credibility of the witnesses and were not unreasonable. The court held that there was no basis to interfere with the magistrate's assessment of the credibility of the evidence provided. Consequently, the appeal was dismissed, upholding the magistrate's decision on the apportionment of liability between the parties.

The court did not make any additional orders beyond dismissing the appeal.

Orders