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 hoping to make a U-turn in King William Street. The tram was also proceeding north along King William Street. As the plaintiff’s car approached the intersection of Halifax Street and King William Street, the plaintiff saw that the tram had stopped because the traffic lights were red. The traffic lights changed to green while the plaintiff was approaching the intersection so that she was able to continue without stopping.
The plaintiff’s evidence was that, after she had crossed the intersection of King William Street and Halifax Street, she was ahead of the tram and moved from the traffic lane next to the tramline on to that part of the road where the tramlines were laid. She continued on that course and crossed the intersection of King William Street and Carrington Street, the traffic lights being in her favour. She slowed and stopped at the first break in the median strip after Carrington Street for the purpose of making the U-turn to park in front of the Crown & Sceptre Hotel in King William Street. She could not complete the turn because of traffic travelling in the opposite direction. She stopped on the tram tracks. Her evidence was that she had stopped for about five seconds when she was struck from behind by the tram. It was not an impact of great force but was sufficient to push her vehicle forward a metre or two.
The tram driver’s evidence was that the plaintiff’s car had moved on to the lane occupied by the tramlines just as it crossed the Carrington Street intersection. At that time the plaintiff’s car was only about one tramcar’s length away from the tram. He said that he immediately tried to stop but despite his attempts the tram collided with the plaintiff’s car.
There was a manifest conflict between the evidence of the plaintiff and of the tram driver, particularly as to the time when the plaintiff had manoeuvred her car on to the lane occupied by the tramlines. On the plaintiff’s evidence, the tram driver had time within which to see her car and stop the tram. On the tram driver’s evidence, there was little opportunity to do so. The magistrate preferred the evidence of the tram driver and gave quite detailed reasons for doing so. There is no need to rehearse them.
When findings of fact made by a trial judge after a trial are based to a substantial degree on the credibility of a witness, the appellate court cannot interfere if it thinks that the probabilities are against that finding of fact. The findings of fact will stand unless it can be shown that the judicial officer at the trial has failed to use or has palpably misused his advantage in seeing and hearing the witnesses, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. That principle was reaffirmed in Fox v Percy (2003) 214 CLR 118 at [27] to [29], although the High Court did at the same time state that that principle had to be read against the obligation of courts of appeal to perform their appellate function.
Mr Ward, who appeared for the plaintiff, acknowledged that the principles in Devries v Australian National Railways Commission and in Fox v Percy applied on this appeal. He sought to establish that the magistrate’s findings were inconsistent with the facts that had been incontrovertibly established or that the findings were glaringly improbable. He submitted that the evidence demonstrated that the plaintiff’s motor car was travelling at a faster speed than the tram. It did not have to stop at the Halifax Street intersection and so would have had proceeded well past the tram and got some distance ahead of it before slowing to make the U-turn and being forced to stop because of the oncoming traffic. There was, he contended, no evidence to suggest that the plaintiff had had to slow down because of other traffic travelling in the same direction as the plaintiff. He submitted that at the time when the plaintiff stopped her car, the tram driver had adequate time within which to stop. He added that the fact that the tram driver sounded his horn indicated that he first tried to get the plaintiff to move her car out of the path of the tram and that he did not apply the brakes of the tram until too late. Had he applied the brakes of the tram earlier instead of first sounding his horn, the tram would have been able to stop without colliding with the plaintiff’s car. He therefore submitted that the tram driver’s evidence that the plaintiff had moved in to the path of the tram giving him too little time to stop was simply not probable.
Mr Ward’s submission depends on the proposition that, as the plaintiff’s car was travelling faster than the tram, the ordinary laws of physics dictate that it would have been sufficiently far ahead of the tram when it stopped to enable the tram driver to stop the tram. There is a good deal of force in that submission. It was also largely grounded on the fact that the tram driver sounded his horn first instead of braking. It was put at the trial and on this appeal that the tram driver had sounded his horn before applying the brakes to the tram. That contention was put to the tram driver in cross-examination and was repeatedly denied by him. One weakness in the plaintiff’s case is that she did not check to see how far behind her car the tram was when she slowed her car and stopped it because she could not complete the U-turn. The contention is not, therefore, grounded entirely on observed fact but on a supposition as to how the driver of the tram had responded to the fact that the plaintiff’s car was in the path of the tram. Another difficulty with the submission is that the contention that the plaintiff was able to proceed uninterrupted along King William Street is not consistent with the tram driver’s evidence. It is not an incontrovertible fact.
The tram driver’s evidence was that, when the tram was stationary at the Halifax Street intersection, cars were also stationary at the traffic lights on the left of the tram. The plaintiff was not asked in cross-examination whether she had stopped at the intersection or whether there were vehicles in front of her car. All that was put to her was that she had not manoeuvred her car on to the lane occupied by the tramlines until she was crossing the intersection of Carrington Street and King William Street. It is a nice question whether there was a failure by counsel for the defendant to comply with the rule in Browne v Dunn (1894) 6 R 67. It was not contended that there was. The fact that the vehicles had stopped alongside the tram is a fact which would affect the capacity of the plaintiff to drive through the intersection after the lights had changed without some decrease in her speed. The possibility of vehicles being at the intersection and so preventing the plaintiff from driving at an uninterrupted rate of speed through the intersection and overtaking a slower moving tram starting from a stationary position is, therefore, not incontrovertibly established. Similarly, although the plaintiff may well have overtaken the slower moving tram, there are real questions as to how far ahead of the tram she was when she moved into the lane occupied by the tramline. On her own evidence, she was only three car lengths ahead of the tram when she did so.
There are other difficulties in the path of Mr Ward’s submissions. First, it was the plaintiff’s evidence that she had slowed before making the U-turn and stopping. During that time the tram would have been gaining on her vehicle. Next, the plaintiff’s evidence was that she had looked in her rear-view mirror as she was driving between the Halifax Street intersection and the Carrington Street intersection and moved into the lane occupied by the tramlines. She said that the tram was about three car lengths behind her car. Three car lengths is not a large distance at all even allowing for the fact that she might have been travelling at a faster speed than the tram. The plaintiff admitted that she did not see the tram again before it collided with her vehicle. On her own evidence, she did not check to see how far behind her car the tram was when she slowed her car for the purpose of making the U-turn and stopped. In short, she did not know whether it was safe to stop on the tramlines. Thirdly, the tram driver’s evidence that the plaintiff had moved into the path of the tram when crossing the Carrington Street intersection is consistent with evidence given by both the plaintiff and the tram driver to the effect that, very shortly after the accident, the tram driver had said that the plaintiff had pulled out in front of the tram. Although the evidence of both the plaintiff and the tram driver was that the plaintiff had denied the fact that she had pulled in front of the tram, the tram driver’s immediate reaction is consistent with his version of the facts. Finally, the tram driver had a clear view what was in front of the tram, a fact relied on by the magistrate. On her own evidence, the plaintiff did not look back to check to see how far the tram was behind her and determine whether it was safe to make the U-turn.
A driver proposing to make a U-turn has a duty to ensure that it is safe to undertake that manoeuvre. That is especially so in a city street. That duty involves at least checking to ensure that the turn can be made safely without causing inconvenience to oncoming traffic as well as ensuring that her own car is not moving into the path of traffic coming from behind. On her own evidence, the plaintiff did not check to see whether she could safely slow and stop to make the U-turn. When slowing and stopping on the tramlines, it was necessary to have regard to the fact that a tram comprising two large tram cars linked together will not be able to stop as quickly as, say, a car travelling at the same speed.
In his reasons the magistrate referred to the remarks as to the need for defensive driving in Walton v Rowbottom (Von Doussa J, 17 September 1986, unreported):
The community now requires not only a measure of defensive driving, but a measure of protective driving – to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. … Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable ‘rights’ to drive up to the limits prescribed regardless of prevailing circumstances.
The magistrate found that the plaintiff took a risk by moving her car on to the lane occupied by the tramlines and was responsible for the collision. He found that the primary cause of the collision was “the plaintiff’s foolhardy manoeuvre”.
For all of these reasons, it is not possible to conclude that the magistrate’s finding is either inconsistent with incontrovertible facts or is glaringly improbable. I am not satisfied that there is a compelling inference which can be drawn from the facts as proved that the collision was not primarily caused by the negligence of the plaintiff.
Mr Ward also submitted that, even if the plaintiff’s negligence was the primary cause of the collision, the magistrate had erred in finding she was 85 per cent responsible for the collision. Section 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act2001 gives a very wide discretion to the judicial officer who must undertake the original task of apportioning liability between drivers involved in a vehicle accident. Much latitude must be allowed to the original tribunal in arriving at a judgment as to what is just an equitable and it is therefore to be expected that cases will be rare in which the apportionment made can be successfully challenged: Pennington v Norris (1956) 96 CLR 10 at 15 to 16. See also Podrebersek v Australian Island Steel Pty Ltd (1985) 59 ALJR 492 at 493 to 494. Mr Ward submitted that the tram driver had a duty to ensure that the tram remained sufficiently far behind vehicles in front of it to stop in an emergency, a duty described as the “upmost duty of care”: Kambouridis v Heyne [2000] SASC 361; Cocks v Sheppard (1979) 53 ALJR 591. The submission fails to have sufficient regard for the fact that, as the magistrate found, the plaintiff moved into the path of the tram leaving the tram driver with inadequate opportunity to stop without colliding with the plaintiff’s car. I am not persuaded that there is sufficient ground to justify interfering with the magistrate’s apportionment of liability.
For these reasons, the appeal will be dismissed.