Duniam v Smartsalary Pty Ltd
[2025] WADC 58
•8 SEPTEMBER 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DUNIAM -v- SMARTSALARY PTY LTD [2025] WADC 58
CORAM: SWEENEY DCJ
HEARD: 1 FEBRUARY 2024
DELIVERED : 8 SEPTEMBER 2025
FILE NO/S: APP 46 of 2023
(APP 45 of 2023 and APP 46 of 2023 consolidated)
BETWEEN: THOMAS DUNIAM
Appellant
AND
SMARTSALARY PTY LTD
First Respondent
AND
JOSEPH MUSITANO
Second Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE DARGE
File Number : PER/GCLM/7/2022
Catchwords:
Appeal from magistrate - Motor vehicle collision - Negligence - Contributory negligence - Inferences - Browne v Dunn - Obligation of magistrate to comply with Browne v Dunn - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr L N Firios |
| First Respondent | : | Ms V A Bennett |
| Second Respondent | : | Ms V A Bennett |
Solicitors:
| Appellant | : | McCabes |
| First Respondent | : | Ligeti Partners - Perth |
| Second Respondent | : | Ligeti Partners - Perth |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607
Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Browne v Dunn (1894) 6 R 67
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Cocks v Sheppard (1979) 25 ALR 325
Davie v Manuel [2024] WASCA 21
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; (2019) 100 NSWLR 155
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ilsley v Boots [1970] 2 NSWR 551
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Lee v Lee (2019) 266 CLR 129
Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1; (2017) 353 ALR 201
Manley v Alexander (2005) 80 ALJR 413; (2005) 223 ALR 228
O'Connor v Insurance Commission of Western Australia [2016] WASCA 95
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529
Powell v Streatham Manor Nursing Home [1935] AC 243
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Warren v Coombes (1979) 142 CLR 531
Table of Contents
Introduction
The nature of an appeal to this court and the role of an appellate court
Overview of the collision
Mr Musitano's version of events
The appellant's version of events
The damage to the vehicles depicted in the photographs
The learned magistrate's reasons for decision and findings
The grounds of appeal
Grounds 1 and 2 - the appellant's submissions
Grounds 1 and 2 - Mr Musitano's submissions
The principles in Browne v Dunn
Grounds 1 and 2 - disposition
(a) Was there any evidence to support the finding that the appellant exited his driveway into the left lane and then began to move into the right lane?
(b) Was there a procedural unfairness in the learned magistrate failing to comply with the rule in Browne v Dunn?
Grounds 3 and 4 - the appellant's submissions
Grounds 3 and 4 - Mr Musitano's submissions
Grounds 3 and 4 - disposition
SWEENEY DCJ:
Introduction
These are two appeals, consolidated into one, from a decision of a learned magistrate attributing liability for a motor vehicle collision which occurred on 23 October 2021. The collision involved two vehicles, a Tesla and an Audi, with each driver blaming the other for negligently causing the collision.
The appellant, Mr Duniam, was the driver of the Tesla and brought a general procedure claim in the Magistrates Court against Mr Musitano, the driver of the Audi, for damages to the Tesla. The Audi was owned by Smartsalary Pty Ltd, which brought a corresponding claim against the appellant for damages to the Audi. By the time the matter came to trial, the parties had agreed on the quantum of damages to both vehicles and that each owed a duty to other road users to take reasonable care. Liability for allegedly negligently causing the collision was the sole issue, which involved the court making factual findings about how the collision had occurred.
On 22 August 2023 his Honour presided over the trial of both actions together and found the appellant liable for negligently causing the collision, but also made a finding of contributory negligence against Mr Musitano to the extent of 20%. The appellant appeals the decision which determined both claims, and hence there are two respondents ‑ both the owner and driver of the Audi ‑ but, for ease of the reader, I will simply refer to Mr Musitano by name, as representing the respondents' position. Mr Musitano does not challenge the finding of contributory negligence made against him, nor the figure of 20%.
For the reasons which appear below, the appeal fails, both as to the finding of liability on the part of the appellant for the collision and the apportionment of liability against Mr Musitano to the extent of only 20%.
The nature of an appeal to this court and the role of an appellate court
The appeal is brought pursuant to s 40(1)(b) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA). Such an appeal is in the nature of a re‑hearing, requiring a reconsideration of the evidence which was before the learned magistrate: s 40(4)(b) MCCPA and District Court Rules 2005 (WA) (DCR) r 50(1).
The appellant must establish some legal, factual, or discretionary error on the part of the learned magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203. This court is to conduct a real review of the evidence and the reasons for judgment to determine whether the trial judge erred. The onus is on the appellant to establish such error. If no such error is established, then this court cannot simply substitute its own decision: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
Where a trial judge has made factual findings based upon the credibility of the witnesses, having seen and heard them testify, then the trial judge has an advantage over an appellate court and is normally in a better position to judge which witnesses are trustworthy and which are not: Powell v Streatham Manor Nursing Home [1935] AC 243; Warren v Coombes (1979) 142 CLR 531, 552, (Gibbs ACJ, Jacobs and Murphy JJ). An appellate court should not interfere with the trial judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or are 'glaringly improbable' or 'contrary to compelling inferences': Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]. But such 'appellate restraint' is concerned with the primary findings of fact informed by the credibility and reliability of the witnesses and 'secondary facts based on a combination of these impressions and other inferences from primary facts' rather than the proper inferences to be drawn from undisputed or established facts: Lee v Lee (2019) 266 CLR 129, 148 ‑ 149 [55] (Bell, Gageler, Nettle and Edelman JJ).
The facts having been found by the trial judge, the appellate court will generally be in as good a position as the trial judge to determine what inferences can and should be drawn from the facts which were not in dispute or were established by the trial judge's findings: Warren v Coombes, 551, (Gibbs ACJ, Jacobs and Murphy JJ). If, in those circumstances and after giving full weight to the decision of the trial judge, the appellate court decides his decision was wrong, it must give effect to its own decision: Warren v Coombes, 552, (Gibbs ACJ, Jacobs and Murphy JJ).
The appellate court is in as good a position as the trial judge to assess whether the facts as found do or do not give rise to an inference that a party was negligent: Warren v Coombes, 552, (Gibbs ACJ, Jacobs and Murphy JJ).
Overview of the collision
The collision occurred during daylight hours on Flinders Street in Yokine, just south of the intersection between Morley Drive and Flinders Street (Flinders). Morley Drive runs broadly east‑west at that point and Flinders runs broadly north‑south, with the intersection governed by traffic lights. Flinders consists of two southbound and two northbound lanes.
The appellant lived in one of the units at 246 Flinders Street on the south‑east corner of the intersection. The driveway for that set of units on Flinders ‑ on the left‑hand side for a driver heading south ‑ was rather close to the intersection. There was evidence before the court that it was about 40 m from the intersection to the appellant's driveway and a further 40 m on to the point of the collision. That evidence will be referred to in greater detail below.
An agreed book of materials was tendered before the learned magistrate which included the aerial Google photograph below, depicting and labelling the intersection of the two streets, with the red marker identifying 246 Flinders and the driveway to the south of that residence adjoining Flinders. The 'x' marked on the photograph opposite 235 Flinders should be disregarded. It was intended by the appellant (pre‑trial) to represent the location of the collision in the right lane going south, but it was conceded in his evidence that in fact the collision took place at a point level with the driveway to 237 Flinders.
Mr Musitano, in the Audi, had been heading east along Morley Drive and then turned right at the lights into Flinders, entering the right‑hand lane, driving south. Very broadly ‑ because the description of the collision is at the very heart of the appeals ‑ the appellant, in the Tesla, having seen the Audi entering Flinders, exited his driveway at 246 Flinders to also travel south on Flinders. He intended, ultimately, to head north on Flinders but, rather than negotiate a right‑hand turn directly from his driveway to head north, necessitating a clear path in all directions, his preferred method was to first make a left‑hand turn onto Flinders heading south initially, before then making a 'U‑turn' so that he could head north on Flinders.
In the Google aerial map above, it can be seen that the median strip dividing southbound Flinders from northbound is largely painted on and flat but, just south of 246 Flinders, the median strip is upraised for a portion. It had been the appellant's intention to execute his U‑turn about opposite 237 Flinders entering its driveway. In his witness statement he said that he had intended to drive 'into the driveway of 237 Flinders to do a U‑Turn'.
That description caused a little confusion at trial, in that it raised the suggestion that the so‑called 'U‑turn' was actually to be a 'three‑point' turn, namely driving into the driveway of 237 and then reversing out, before heading north. The appellant was asked about that by his Honour, and clarified that he had not been planning to enter the driveway of 237 and then reverse back but, rather, intended a U‑turn. There was no follow‑up question to clarify what he had meant, then, by his reference to driving into that driveway to execute a U‑turn. I infer ‑ because it is the only explanation I can arrive at and seems logical ‑ that he meant that he could utilise some of that driveway in his turning circle if necessary, given that there was no road kerbing at the point of the driveway to both 237 and the property adjacent to it as seen below, with the intersection in the background.
It was that intention to make that U‑turn which gave the broad indication of where the collision had ultimately occurred, more or less opposite that driveway at 237. The appellant, having seen the Audi at the intersection and entering Flinders heading south, also entered Flinders heading south, intending to make his U‑turn. The precise position of the two cars relative to each other as both headed south was in issue in the trial, but the result was that the appellant was about to, or had just begun to, execute his U‑turn when the front of the Audi collided with the right rear corner/side panel (driver's side) of the Tesla. The point of impact on the front of the Audi was shown by a photograph to be left (passenger side) of centre of its bumper/grille.
Each driver had admitted that he owed a duty of care to the other to take reasonable care whilst driving. The trial was short and took place in a busy jurisdiction. His Honour's reasons were delivered the very same day, approximately 1 hour and 20 minutes after the conclusion of the evidence and submissions from counsel. The Civil Liability Act2002 (WA) (the CLA) received no express attention from counsel or the court, the focus of the trial being to resolve the factual scenario in which the collision occurred. In the manner in which the trial was run, it must be taken to have been impliedly accepted that each driver knew or ought to have known that, if he did not take reasonable care, then there was a foreseeable risk of harm including property damage being caused to another driver by his actions, including the other driver in the proceedings, and that the risk was not insignificant: s 5B(1) CLA.
The appellant and Mr Musitano were the only witnesses in the trial. An order had been made pre‑trial that witness statements were to stand as the evidence‑in‑chief of the parties. That did not mean that the parties were strictly confined to those statements and were not able to supplement them to clarify the evidence, as his Honour suggested to counsel early in Mr Musitano's evidence.
It is necessary to summarise each witness's account of the collision. Mr Musitano testified first.
Mr Musitano's version of events
Homing in on the collision, Mr Musitano said in his statement, which constituted his evidence‑in‑chief:
I was travelling east along Morley Drive and then turned right onto Flinders Street … I was situated and travelling in the right lane of Flinders Street at approximately 30 - 40 kmph. I had not yet reached the speed limit as I had just turned the corner onto Flinders Street. I travelled approximately 80 metres down Flinders Street, when a Tesla … suddenly veered into the right lane and collided with the front left bumper of the Audi (Collision). I tried to brake and swerve towards the right, but it was too late and I could not avoid the Collision.
Mr Musitano's statement described the two drivers, after the collision, pulling into a driveway on the other side of the road and exchanging details and then continued:
The Defendant apologised for colliding with the Audi and admitted that [sic] saw me and acknowledged he didn't leave enough space. He advised me he was fully insured with RAC Insurance.
Mr Musitano's counsel at trial characterised those statements as admissions of liability on the part of the appellant.
Mr Musitano also referred in his statement to having filled in an online crash report form (crash report) which was produced to the court. His Honour quite rightly commented that such a form was relevant only in so far as there might be inconsistencies between his statement and the form, which could be clarified. There was one aspect which Mr Musitano clarified in his examination‑in‑chief, which does not bear on this appeal.
In cross‑examination, prompted by his crash report, Mr Musitano agreed that his speed prior to impact was 40 km per hour and, at the point of impact, had reduced to 25 km per hour and that his 'sighting distance' ‑ in other words, the distance between his car and the Tesla when he first sighted it ‑ was 10 m. The witness agreed that he had described the direction of travel of the Tesla in his crash report as 'westbound', and agreed that meant 'in effect perpendicular to your vehicle' and that he had written that the Tesla had come out of a driveway and was making a right‑hand turn. Mr Musitano was taken to, and agreed, with his description in the crash report that:
The Tesla appeared in front of me after exiting his residence at 246. He was attempting to turn right on Flinders, crossing the two southbound lanes.
Counsel took Mr Musitano to an annotated road map of the location which formed part of the appellant's claim to his insurer and was presumably annotated by the appellant, which indicated the location of the impact between the two vehicles as having occurred opposite the driveway to 237 Flinders Street. The annotated map indicated the Tesla pulling out from the driveway and heading perpendicular to the road until the right lane was achieved, and then turning sharply to the left and heading south ahead of the Tesla with the paths taken by both vehicles in the right lane depicted as converging at the point of impact further down Flinders Street opposite 237.
Counsel for the appellant asked Mr Musitano to agree that what was shown in that diagram was different to his own account of the collision. The witness agreed it was different, but when it was suggested to him that the Tesla had pulled out into the 'second' (right‑hand) lane and travelled some distance in front of the Audi prior to the collision, Mr Musitano said he was unaware of that. He testified that the first time he saw the Tesla was when 'it crossed in front of' the Audi. He said he did not see it until it was in front of him, facing west, and said he believed the Tesla was perpendicular to his vehicle when the collision occurred. He said it just suddenly appeared about 10 m in front of him, not giving him time to avoid it and, at that point, what he was looking at was 'the side of' the Tesla and he 'hit the side wheel'.
Counsel suggested that the Tesla was, rather, facing south‑west, at an angle of 45 degrees to the Audi, at impact. Mr Musitano maintained that the Tesla was perpendicular to the Audi at impact. When counsel asserted that the Tesla could only have been perpendicular to the Audi if the Tesla had just come out of a driveway at the point of collision ‑ a questionable premise ‑ Mr Musitano replied that he did not know how that Tesla got in front of him and just knew that it was in front of him.
He was not cross‑examined at all about the conversation following the collision.
In re‑examination, Mr Musitano was taken back to his crash report (which was not his witness statement and was not his evidence). He volunteered that his description in that crash report to the effect that the appellant had been attempting to turn right after exiting his residence had been influenced by hearing the appellant state, after the collision, that he lived across the road and Mr Musitano said that he had made an assumption that the collision had therefore occurred directly opposite the appellant's driveway. His crash report contained a depiction (based on a zoomed‑in road map) of the point of collision which was patently too close to the intersection with Morley Drive. Mr Musitano said that he had gained the address of the appellant from his motor driver's licence following the collision and, based on his understanding that the collision had occurred opposite the appellant's address, marked the location as opposite that address.
It is apparent that, when filling in his crash report, Mr Musitano could not plot the point of collision accurately beyond the basics of the street and near the intersection he had just driven through. That was a misunderstanding on Mr Musitano's part, which he eventually realised at some point. Just when was not clarified, but it was implied in his evidence that he later saw the photograph and location of the driveway in 237 Flinders to which they moved the cars after the collision, and grasped that the collision had occurred at a point further south than he had depicted in his crash report. In any event, Mr Musitano appeared to accept that his assumption in the crash report that the appellant had been attempting a right‑hand turn from his driveway was erroneous. He did not, however, resile from his testimony as to the relative positions of the cars to each other just prior to impact and maintained that, when he saw the Tesla, it was approximately 10 m in front of him and perpendicular to the Audi, which struck the side wheel of the Tesla.
Mr Musitano testified that, when the cars came to a stop after impact, his Audi was still pointing south, while the Tesla was now in the northbound lane closest to him (the right-hand northbound lane), at an angle and pointing north‑west ‑ in other words, the Tesla was now pointing towards Morley Drive but at an angle.
The appellant's version of events
The appellant's witness statement, which stood as his evidence‑in‑chief, read:
I was intending to travel to the local community swimming pool and to get to the pool, I needed to go north on Flinders Street … My driveway connected with the southbound lanes on Flinders Street. I approached the end of my driveway and stopped before turning onto Flinders Street. I indicated to turn left, and I looked to my right for traffic travelling south on Flinders Street. I saw an Audi … which I now [sic] was being driven by Mr Musitano, had just passed through the intersection of Flinders Street and Morley Drive and was travelling south. I turned left and moved into the right southbound lane on Flinders Street. I travelled approximately 40 m along Flinders Street and I then indicated to turn right. I intended to drive into the driveway at 237 Flinders Street to do a U-turn. As I started to turn, I felt an impact to the rear of my car …
That appellant testified that he did not wish to make any changes to that statement. His witness statement had made no mention of any conversation post‑collision, and his own counsel did not question him about it, despite the evidence which had already been led from Mr Musitano. The appellant also gave no evidence‑in‑chief about his annotated map, which had been put to Mr Musitano as reflecting the path taken by the two vehicles with the collision point annotated, or the annotated aerial google photograph, which bore a blue pen cross to mark the location of the collision.
In cross‑examination, the appellant was taken to both documents, which depict different locations for the collision, the annotated aerial photograph showing the collision as having occurred opposite 235 while the annotated map showed the collision as having occurred opposite 237 (or 237A, which is the same location). After initially testifying that he thought it was 100 m down the road, the appellant accepted that the collision occurred opposite the blue driveway of the house he had photographed (reproduced above), which put the location as being opposite 237A. He agreed in cross‑examination that his driveway was about 40 m (south) from the Morley Drive intersection and about 40 m (north) from the collision point, lending an approximate span of 80 m from the southern edge of the intersection to the collision. Neither witness purported to have measured the distance, but the distances put accord with the general impression gained from the aerial photograph (including by reference to the lengths of cars and the width of the lanes).
The appellant indicated that he would not be prepared to make a right‑hand turn on Flinders from his driveway to head north because it was too close to the intersection and the bushes outside the units at 246 obscured the view. The aerial photograph suggests the view which would be obscured would relate to cars driving west on Morley Drive and making a left‑hand turn into Flinders (the opposite direction from which Mr Musitano had come). It was not suggested at any time that the appellant's view of the Audi had been obscured. The appellant confirmed that he had seen the Audi when he had stopped at the end of his driveway and looked to his right for oncoming traffic. He first said the Audi was 'just leaving the lights. So on Morley Drive heading towards Flinders', then agreed that the Audi was 'travelling south towards Flinders', both different from his evidence‑in‑chief in which he had described seeing the Audi when it 'had just passed through the intersection of Flinders Street and Morley Drive and was travelling south', placing it squarely in Flinders.
His description of the manoeuvre he made was:
I went - veered over into the right from leaving my driveway. It was one continual movement from my driveway into the right lane because I … I needed to do the U-turn. I was indicating left and then exited my driveway into the right lane.
Although counsel in a follow‑up question appeared to consider the right‑hand lane to be the 'inside' lane (the 'inside' lane is the left lane) and got some agreement to the overall question, it is apparent from the above description that the appellant was always speaking of the right lane.
When asked how long there was between exiting his driveway and the collision, the appellant said he thought it would be close to 80 m 'down the road'. If that was a description of the distance from his driveway to the point of impact, it contradicted the earlier estimates, but it was consistent with them if he had meant to indicate the collision point in terms of the total length down Flinders from the intersection. In any event, what counsel was asking about was the timeframe between pulling out from the driveway and the impact. The appellant then gave some extraordinary evidence about that, stating initially that he did not know, then estimating 'less than a minute', then 'probably two minutes'. When counsel expressed surprise at the answers, the appellant clarified what he was being asked, before hazarding an estimate of 'three minutes maximum' before settling on 'about ‑ yes ‑ two minutes. It was quick. It seemed like it went pretty quick'.
That shifting evidence was plainly wildly inaccurate. His Honour referred to speeds and distances in his reasons, which will be reproduced shortly. Given that the evidence approximated the distance the appellant had to cover from his driveway to the impact point at about 40 m, and that a car travelling 40 km per hour will travel 40 m in 3.6 seconds, and making every allowance for the Tesla pulling out of the driveway from a stationary position and then decelerating to make the U‑turn, his estimated timeframes were just impossible. Counsel put to him that he would cover that distance at that speed in about 3.5 seconds and suggested that he had tried very quickly to do a U‑turn in front of the Audi but had misjudged the time and space available to him. The appellant denied that, and said that he was
in the right lane down the road and then did my U‑turn and that's when I got the side impact to the rear of my car. So, yes, I can't agree that I pulled out quick.
The appellant agreed that he had told Mr Musitano after the collision that he was fully insured, that Mr Musitano was not to worry about it and that he had 'thought there was enough space'. In re‑examination, the appellant said that the conversation had occurred 'out of the front of the house with the blue driveway when we hit'. He said they had moved the cars from the middle of the road 'because I was sort of pushed in towards the oncoming traffic' and the two men then spoke. He said he was
in a sort of a state of complete shock to be fair. I was baffled as to how the accident happened because I remember indicating, looking at oncoming traffic to see when it was right for me to go along the other side of Flinders … Street … and then - yes - I was just baffled as to why - how it happened being that I did see the Audi from the time I left my driveway.
He said that he did give Mr Musitano an assurance about being insured because he, the appellant, had never been in an accident before and did not know what to cover and just knew the basics, such as exchanging licences and registration numbers and insurance, and wanted to make the situation 'comfortable and less confrontational' and to let Mr Musitano know that 'everything is covered. So no matter what the outcome was that it was okay'. He was not re‑examined about his evidence that he had 'thought there was enough space'.
The damage to the vehicles depicted in the photographs
In his reasons, his Honour described the evident impact to both vehicles as depicted in the photographs.
To the Tesla, pictured below, the evident damage was all to the rear right (driver's side) of the car, with the body buckled directly above the right rear tyre, and the rear bumper on the right edge directly under the rear brake light and also adjacent to the rear of the tyre being obviously damaged. The white duco on the right outermost edge immediately behind the tyre and directly under the outer edge of the brake light was also scraped or gouged. There was no other apparent damage to the duco. From the photograph it could be inferred that the point of impact was the rear right corner/rear side panel of the car.
To the Audi, pictured below, the evident damage was to the front of the car, left of centre and to the left (passenger) side of the front bumper/grille. The grille was centrally placed as part of the front bumper arrangement and bore the registration plate, also centrally placed on the grille. The grille itself appeared damaged on its left side edge and there was an obvious dark scrape or scuff mark on the duco slightly further to the left (passenger) side of the grille, all that damage being about halfway between the notional centre front point of the Audi and its outer left (passenger) side edge. From the front centre to the driver's side appeared undamaged. There were some scuff marks further to the left on the front bumper bar broadly below the left headlight.
Apart from the black door handles, the Tesla was all white with silver rims. The tyres were black. It was Mr Musitano's case that the front of the Audi (towards the passenger side) had collided with the rear driver's side tyre of the Tesla, the Audi picking up the dark mark on its duco from that tyre. Of course the resulting damage to the Telsa extended beyond the tyre itself, including the bumper but also damage that was not apparent in the photograph, which was detailed in insurance documentation before the learned magistrate. The appellant's counsel submitted that the evidence was insufficient to determine whether the dark mark had come from the Tesla's tyre itself, or was caused by bumpers colliding. His Honour did not consider the distinction to be significant.
The evident damage to the exterior of each vehicle was confined and modest, and the point of impact could be, and was, inferred by his Honour.
The learned magistrate's reasons for decision and findings
The learned magistrate commenced his reasons for decision with the observation that, in his conclusion, neither of the drivers knew 'exactly' how the collision had occurred and considered that both had 'a sense of bafflement' about that.
His Honour remarked upon Mr Musitano's original understanding that the appellant had simply pulled out from his driveway and driven straight across the lanes, later referring to Mr Musitano's assumption based on where the appellant lived. His Honour also noted some inconsistencies between Mr Musitano's crash report and his evidence, namely that in the crash report he had said he was travelling 40 km per hour and 25 km per hour at the point of impact, as opposed to an estimate in his witness statement that he was driving at approximately 30 ‑ 40 km per hour.
After referring to Mr Musitano's clarification in re‑examination of what he had seen and what he had only surmised, his Honour commented:
In my view, the inconsistencies that were in the police statement are appropriate for a driver suddenly presented with another vehicle coming into its path, rightly or wrongly, and I don't take anything out of that particular said inconsistencies.
His Honour then turned to the evidence of the appellant and referred to his estimate of how long he was engaged in the manoeuvre as being 'problematical' and found that 'clearly, time wasn't his strong point' but found that the unreliability of that evidence did not, of itself, prove that the appellant's driving had been negligent.
His Honour considered the evidence of the conversation between the two drivers following the collision, relied upon by counsel for Mr Musitano as an admission by the appellant. His Honour made nothing of the assurance given by the appellant to Mr Musitano that he was fully insured but His Honour did place at least some weight on Mr Musitano's evidence about the remainder of the conversation:
I do, however, place more weight on the comment that Mr Musitano had made that [the appellant] said that he had seen the Audi and admitted that he had seen him and acknowledged that he didn't leave enough space. Whilst I accept generally that [the appellant's] behaviour after the accident was consistent with someone who says that they had not been involved in an accident before, and therefore trying to do the best to work out what they needed to do, in my view, that statement does tend to go towards an acknowledgement that the manoeuvre was done without leaving enough space for Mr Musitano as he saw him approach.
The two versions of that conversation were subtly different and it is apparent that his Honour favoured an interpretation that the appellant had acknowledged that he had misjudged his manoeuvre, by thinking there was enough space when there was not.
Significantly, his Honour found the appellant's chosen manoeuvre (however precisely it was executed) to have been risky:
Clearly, in my view, [the appellant] was involved in a risky manoeuvre that he was undertaking. He indicated that he was doing this left turn and then U‑turn, rather than turning across traffic, because of the four lanes that ‑ three or four lanes that might be involved in that process, but, in any event, this involved crossing two lanes to be in a position where he could make the U‑turn and involved a turn into a driveway in a manner that might be unexpected to a driver following.
The reference to the 'turn into a driveway' should not be seen as a misunderstanding on the part of his Honour to the effect that the appellant was in fact planning to drive fully into the driveway of 237 and then, presumably, reverse. That evidence had been clarified, and should be seen in line with the appellant's evidence that that was where he was intending to make his U‑turn.
His Honour elaborated further as to the riskiness of the manoeuvre from the perspective of 'a driver following':
Even if they did observe somebody come out of a driveway on the left‑hand side, it would not be an immediate or reasonable thought that the driver intended to pull out, cross one lane into the next lane, and then slow or stop in order to conduct a U‑turn. It required a high level of vigilance on the part of [the appellant] and also a level of vigilance on Mr Musitano to work out what this manoeuvre was going to be and to be able to respond to it.
Those comments clearly informed the eventual modest award against Mr Musitano for contributory negligence. His Honour returned to that later in his reasons.
His Honour drew inferences as to the approximate distance between the driveway from which the appellant had exited at 246 Flinders and the point of where the U‑turn would be commenced as being '40 metres, 30 metres, something of that like', although his Honour took the longer distance of 40 m into account in continuing
It's impossible to be precise, and, also, I acknowledge that the time that passed between the two vehicles reaching that point would be relatively quick, given that 40 kilometres per hour is somewhere around 10 metres per second. 16.6, being 60 kilometres per hour. So for the [appellant] to succeed in the case, [the appellant], he would have to establish that he had pulled out at a time when it was safe to do so, that he was, effectively, sitting in the lane waiting to turn, and that he was then thusly hit in the rear.
The reference to 'sitting in the lane waiting to turn' was consistent with the appellant's summary of the material facts in his statement of general procedure claim. His evidence, and his case, was that he was beginning to turn, but nothing was made of the difference by counsel or his Honour. The appellant's evidence was still to the effect that he had been driving in the right‑hand lane 'down the road' for some time (with significant inconsistency between the distance and the timeframe). And now we come to the nub of the appellant's complaint about his Honour's reasoning process:
The problem that I have with that is that it is evident to me that the impact occurred between the front left of centre on the Audi and the right rear on the Tesla. Now, this sort of impact, in my view, could have occurred in a couple of ways. Either the perpendicular style impact proposed by Mr Musitano or a 45‑degree, thereabouts, impact. In my view, neither of these is possible in the [appellant's] case.
If the [appellant] was fully in the lane, then the impact would have been to the right of the Audi. It was not possible, in my view, for the accident to have occurred in this way. The only possible way it could have occurred is if the Tesla had significantly made its move into the other opposing lanes and the Audi swerved onto the wrong side of the road and collided with that left of centre side.
I don't think that those conclusions are consistent with the evidence.
The appellant complains that his Honour, in the above passage, took no account of another possible explanation for the respective points of impact ‑ namely that the appellant was fully in the right‑hand lane and had just begun to make his turn, as he said, and that Mr Musitano had swerved to his right.
His Honour continued:
I'm left then with the view that the most likely version of events is that the Tesla was only partly in the lane ‑ or, at least, the rear right‑hand side was towards the left‑hand side of the right‑hand lane of Flinders Street at the time that the collision occurred. This could have come, in my view, in two ways.
One in which was that the Tesla swerved abruptly across the path of the Audi or that the Tesla made, as it were, a sweeping manoeuvre out of the driveway in the left lane, and then across into the right‑hand lane, and then slowed in order to make the turn into 237. It was suggested by the defendant that I could not find the accident occurred in the way suggested by Mr Musitano or in the second scenario that I have put forward, the sweeping version of events, because he, effectively, did not know what happened.
In my view, it's not unusual for there to be suggestions that a vehicle involved in an accident 'came out of nowhere', however, most of those suggestions are made by people who weren't keeping the proper lookout. The real question is whether the accident is logically consistent with the simple arguments put forward. In my view, Mr Musitano had the right of way at all times in the right‑hand lane and that [the appellant] had to give way to him when moving out of the driveway and into that right‑hand lane, in a position to make the turn.
In my view, when he pulled out, he had to cross from the driveway on the left‑hand side of the road, across the left‑hand lane into the right‑hand lane, which required him to take note of and give way to Mr Musitano. I don't accept that the accident could have occurred with him pulling out and being established in the right‑hand lane at any particular period of time, and I consider that if the accident occurred with him sweeping into the right‑hand lane and then applying his brakes, that the failure to give way to Mr Musitano was negligent.
In my view, the most consistent, logical version of events is, in fact, that version of events, that [the appellant] came from the 246, came out into the left‑hand lane and began to move over into the right‑hand lane in order to carry out that U‑turn, rather than simply pulling across - sharply pulling across Mr Musitano's lane. For [the appellant] to pull out and get into the lane must have meant that for some period of seconds, he was observable to Mr Musitano.
Again, the exact point of the lane change, so called, from crossing into the - across the left‑hand lane into the right is not known but for some time, as I said, he would have been observable. In some circumstances, a failure to keep a proper lookout is of particular merit and results in a high finding of contributory negligence, such as a driver who indicates to change lanes and that indication is ignored by the following driver in the right‑hand lane.
Whether he swept out and slowed suddenly or simply stopped, I consider that [the appellant's] actions are the primary cause of the accident; however, based on what I consider the most logical version of the accident - which was that [the appellant] swept out from the left‑hand side of the road across the left‑hand lane and into the right‑hand lane in order to make his turn, and slowed to make his turn - I consider that he would have been observable by Mr Musitano and that simply backing off the speed or taking some other action may have avoided the collision or minimised the impact.
In the circumstances, I attribute 20 per cent contributory negligence to Mr Musitano but, in other words, [the appellant], I find, is 80 per cent responsible for the accident.
(emphasis added)
The grounds of appeal
There are four grounds of appeal:
1.The learned magistrate erred in finding that the appellant exited from his driveway into the left lane on Flinders and then began to move into the right lane, when there was no evidence to support that conclusion;
2.The learned magistrate erred in failing to find that the appellant exited his driveway into the right lane on Flinders prior to the collision;
3.The learned magistrate erred in finding that the appellant's actions were the primary cause of the collision; and
4.The learned magistrate erred in finding that the appellant was 80% liable for the collision, and should rather have found that Mr Musitano was entirely or, in the alternative, majority liable for the collision.
The first and second grounds are largely the flip‑side of each other, both complaining that the learned magistrate drew an inference which was not, according to the first ground, supported by any evidence before the court and that his Honour ought to have found that the appellant exited his driveway into the right lane. It was implicit in the way the grounds were argued that the complaint also included the assertion that, if the appellant had exited his driveway into the right lane, then it followed that he had established himself in the right lane before slowing or stopping to conduct his intended U‑turn and Mr Musitano simply drove into the back of the Tesla. I will deal with those grounds together.
The third and fourth grounds can also be dealt with conveniently together. The third ground complains about the end result to the effect that the appellant was found liable for causing the collision at all, and the fourth ground complains of both that finding or, if the appellant had some liability, an inadequate degree of apportionment of responsibility to Mr Musitano.
Grounds 1 and 2 - the appellant's submissions
The appellant complains that the learned magistrate found him liable for the collision on the basis of a third version of the collision which did not reflect either of the drivers' versions of events. According to the appellant:
The magistrate determined that [the appellant's] car was positioned in the left‑hand lane of Flinders Street, and that he proceeded to change into the right‑hand lane in anticipation of performing a U‑turn manoeuvre and then negligently collided with Mr Musitano's vehicle while executing the lane change.
It is the appellant's submission that neither party had contended that the accident occurred in that manner, his own version of events being that he had entered the right‑hand lane when he left his driveway, and then continued south in the right‑hand lane, travelling in front of the Tesla and had just commenced his U‑turn at the time of the collision. The appellant complains that his Honour therefore rejected the parties' respective versions of events and devised his own explanation of how the collision occurred, which was not based on any evidence before the court.
The appellant submitted to this court that Mr Musitano's version of events, to the effect that he first saw the Tesla when it was perpendicular to his car and could not then avoid colliding with it, was consistent with the appellant's version of events in so far as it placed the Tesla in the right‑hand lane in front of the Audi prior to impact. The appellant also submitted that, given that Mr Musitano could not give an account of the path of the Tesla until he first registered its presence and drove into it, then the appellant's account of the path his vehicle took was unchallenged and the learned magistrate should have accepted it.
The appellant submits that, after rejecting the evidence of both drivers, his Honour inferred purely from the photographs of the damage to the vehicles that the Tesla was positioned in the left‑hand lane of Flinders Street driving south, before then changing lanes into the right‑hand lane and, in so doing, collided with the Audi ‑ what the appellant characterises as the third version of events. The appellant complains that, in reaching that conclusion, the learned magistrate failed to consider an alternative explanation for that damage, namely that the Tesla was fully within the right‑hand lane as claimed, but on an angle as the appellant commenced his U‑turn and, in braking, the Audi swerved right, accounting for damage to the left-front side of the Audi.
Finally, the appellant submits that the learned magistrate failed to comply with the principles in Browne v Dunn (1894) 6 R 67, in that his Honour did not put his third version of events to the appellant when he testified for his comment (and nor had Mr Musitano's counsel) before his Honour made those findings against the appellant. That is a complaint of a failure to accord procedural fairness to the appellant. That was not a ground of appeal. It was raised, as I understand it, more as proof that there was no evidence upon which to ground the third version of events and that the appellant was given no opportunity to meet such a scenario in evidence, or to put forward the alternative explanation for the location of the damage to the vehicles consistent with his own version of events and, therefore, the inference should not have been drawn and his Honour should instead have accepted the appellant's evidence.
Grounds 1 and 2 - Mr Musitano's submissions
Counsel for Mr Musitano submitted that there was no basis to find that his Honour's findings of fact and inferences drawn therefrom were glaringly improbable or contrary to compelling inferences, such that this court should interfere. Counsel submitted that, while his Honour placed emphasis on the photographs of the damage to the two vehicles in inferring how the collision had occurred, the inference had not been based on the photographs alone but reflected a consideration of the whole of the evidence, and his Honour's conclusion as to the most probable explanation for how the collision occurred was both justifiable and reasonable.
Counsel argued that, even if the inference drawn by his Honour as to the precise manner by which the collision came to occur was incorrect, it did not follow that his Honour's overall finding against the appellant was in error. That is because, counsel argued, the finding of the precise mechanism of the collision was not determinative of the conclusion of liability, and that the nub of the decision was his Honour's conclusion that the appellant had undertaken a risky manoeuvre with insufficient time in which to do so safely, and had thereby negligently failed to give way to Mr Musitano. Counsel argued that that had determined the outcome, regardless of whether the appellant had pulled into the right‑hand lane in a sweeping motion and then slowed suddenly or simply stopped, or whether he had commenced in the left‑hand lane and then begun to move over into the right‑hand lane in order to carry out the U‑turn. In either circumstance, counsel submitted, his Honour concluded that the collision was caused by the appellant's negligent failure to give way, and the learned magistrate's reasoning was amply supported by the evidence.
As to the Browne v Dunn point, counsel accepted that his Honour had not questioned the appellant when he testified as to his presence or otherwise in the left‑hand lane of Flinders, nor put to him the inconsistencies between the appellant's version of events and the photographs that his Honour identified. Counsel acknowledged 'that the learned magistrate's approach therefore raises questions as to fairness' to the appellant 'and to the weight attached to the evidence relied on by the magistrate to draw the relevant inference'. Nevertheless, counsel submitted that the inference was justifiably drawn and that this court is in as good a position as the learned magistrate to decide the proper inference to be drawn from the evidence after giving due regard to the decision of the learned magistrate. As to the proposition that neither party had contended that the collision had occurred in the manner as found by his Honour, counsel submitted that there was no rule of law that a court must accept unchallenged evidence, and the court was not limited to the propositions put forward by the parties.
The principles in Browne v Dunn
The decision of the House of Lords in Browne v Dunn both recognised and enshrined a rule of procedural fairness in the conduct of a trial. The case concerned an action for malicious libel against a solicitor who had drawn up a document describing his various clients' complaints against the appellant, for the purpose of authorising the solicitor to bring a private prosecution on their behalf against the appellant for breaching the peace. The solicitor claimed legal professional privilege over the document on the basis that he had been genuinely retained and acted on behalf of his clients.
At the trial of the matter, all bar one of the clients testified that they had genuinely retained the solicitor to act on their behalf in the preparation of the document. Two were not cross‑examined at all by the appellant's counsel. The remainder were cross‑examined about their quarrels with the appellant, but not about any instructions given to the solicitor. The appeal in the House of Lords, though it turned on the operation of legal privilege, is remembered for the discussion of the conduct of the trial and the failure of the appellant's counsel to cross‑examine and put the essential allegation to the witnesses.
Lord Herschell, LC observed:
These witnesses all of them deposed to having suffered from such annoyances; they further depose to having consulted the defendant on the subject, and to having given him instructions which resulted in their signing this document; and when they were called there was no suggestion made to them in cross-examination that that was not the case. Their evidence was taken; to some of them it was said, "I have no questions to ask;" in the case of others their cross‑examination was on a point quite beside the evidence to which I have just called attention.
Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, while he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross‑examination of witnesses, and it has been complained of as undue; but it seems to me that a cross‑examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross‑examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.
Lord Halsbury said:
My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross‑examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts that they deposed to.
The resulting 'rule' in Browne v Dunn was encapsulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 16; (1983) 44 ALR 607:
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross‑examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross‑examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
The rule therefore both allows the witness the opportunity to meet the challenge in his testimony, and gives the party who called him the opportunity to call evidence to support his account on that point or otherwise refute the allegation.
The rule also impacts upon the weight to be attached to evidence later led in contradiction of a witness's evidence, when the rule had not been observed. There is no rule of law in this country that a court is bound to accept unchallenged evidence, although it may constitute an error of fact if to do so was perverse or unreasonable in the circumstances: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 587 ‑ 588 (Samuels JA). But, as Mansfield and Gilmour JJ observed in Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322; (2014) 312 ALR 551; [77], unchallenged evidence
may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.
In Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1; (2017) 353 ALR 201, the Full Court of the South Australian Supreme Court, in a joint judgment (Lovell J, Corboy AJ and Slattery AJ) also observed [463] ‑ [464]:
The rule has two aspects. First, it is a rule of practice designed to achieve fairness to witnesses and a fair trial between the parties. Secondly, it relates to the weight or cogency of the evidence. As a general proposition, evidence which is not inherently incredible and which is unchallenged ought to be accepted. The evidence may, of course, be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.
The rule in Browne v Dunnis not restricted in its application to the conduct of counsel. It applies to the court as well. Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 was an appeal involving an action brought by a worker who was seriously injured in the course of his employment when his arm was sucked into a flexible high pressure vacuum hose. In assessing his evidence, the trial judge had commented:
The plaintiff was less than expansive when describing how his arm was drawn into the vacuum hose, and I formed the view that for whatever reason he was reluctant to say precisely what happened.
Further comments suggested that the trial judge had inferred from that reluctance to be forthcoming that the plaintiff may have done something careless that caused his arm to be drawn into the hose. The Browne v Dunnpoint was not the determining point of the appeal but, in the joint judgment of Heydon, Crennan and Bell JJ, their Honours found [62] that it was a serious thing to conclude against a witness that he was 'reluctant' to say what had happened, which equated to concluding that the witness was 'deliberately failing to comply with the duty to tell the whole truth'.
The plurality found that there is no general duty on a judge to advise the parties that the witness's evidence was inadequate to make out his case, but there is an obligation, if counsel is intending to submit or if a trial judge is intending to find that a witness has actually suppressed truthful evidence, to draw that to the witness's or counsel's attention to give an opportunity to respond to such a suggestion. Their Honours found that, if the other party to the case had made submissions in final addresses that the plaintiff had deliberately concealed evidence unfavourable to his own position and thereby ought not to be believed, without having put such a suggestion to him in cross‑examination, that would have been a breach of the rule in Browne v Dunn and, if it was not open to counsel to make such a suggestion without it having been put to the witness then, equally, it could not have been open to the trial judge, without warning, to make such a finding without the plaintiff having been given the opportunity to respond [70] ‑ [72].
Their Honours found that the failure of the trial judge to comply with the rule in Browne v Dunn, coupled with a failure to reveal the reasoning behind the finding that the witness was 'reluctant' and a likelihood that that finding had impacted the ultimate conclusion, was sufficient to justify an order for a retrial, had that been the remedy sought.
In Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498, the New South Wales Court of Appeal dealt with a slightly different situation. At the conclusion of the evidence, counsel had made submissions contending dishonesty on the part of a witness, without having cross‑examined to that effect. No objection was taken to the submissions. On appeal, the court found that, notwithstanding the failure to object at trial, fairness in the administration of justice was central and the whole conduct of the trial, including any failure to object, should be examined to appreciate the consequences of the breach. Citing Kuhl v Zurich [69] ‑ [73] and [75], the court continued [63]:
The continuing and fundamental obligation remains upon a judge in the exercise of judicial power to ensure a fair trial which includes ensuring that a witness is treated fairly, especially where the judge is asked to make a finding impeaching that witness' credit.
At [64] their Honours continued:
It was contended by the appellants on the authority of Kuhl that the rule in Browne v Dunn, being one of fairness, applied equally (and presumably, independently) to a trial judge as to counsel. This is no doubt so …
The rule has been held to apply in the former Court of Petty Sessions, now the Magistrates Court in Western Australia: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226. That was a criminal matter and the rule has been qualified in relation to its application to defendants in criminal prosecutions, but there is no reason to doubt that the rule applies in a Magistrates Court in this State. I accept that the learned magistrate was therefore as obliged to comply with the rule in Browne v Dunn as counsel in the case were.
The judgments delivered in Browne v Dunn allowed for exceptions. The rule does not apply where the witness is on notice that his evidence is in contest, which notice may come from the pleadings, or a pre‑trial document or from the conduct of the case, including the opening address and evidence led by the opposing party: Davie v Manuel [2024] WASCA 21 [84].
By way of illustration, in the case of Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172; (2019) 100 NSWLR 155 [114] ‑ [118], the defendant had made it plain in his pre‑trial pleadings that he contended that one of the plaintiff's witnesses was both unreliable and fabricating, and the witness was cross‑examined to that effect at trial but, then, a subsequent witness provided evidence of a further inconsistency in the earlier witness's evidence. The defendant's counsel in his closing address relied upon that inconsistency too. On appeal, the court found there had been no breach of the rule.
In a different category in the same appeal, however, were submissions made to the jury by the defendant's counsel that the witness should not be believed based on her mental illness, namely anorexia, when no previous notice had been given of such a submission, no mention had been made of it opening, no cross‑examination had been directed to her on that topic and no evidence had been led as to the way in which that condition affected her beyond her dietary habits. Leeming JA drew a distinction between a submission pointing to another inconsistency in the witness's account, and raising for the first time a mental illness as a completely different basis for disbelieving the witness.
I turn now to the first two grounds of appeal.
Grounds 1 and 2 - disposition
(a) Was there any evidence to support the finding that the appellant exited his driveway into the left lane and then began to move into the right lane?
In contending that the learned magistrate drew an inference which was not supported by any evidence, the appellant asserts an error of law. It is an error of law to draw an inference which is not supported by any evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 ‑ 356 (Mason CJ).
In considering whether there was any evidentiary basis for making the finding complained of, and in judging what inferences could be drawn purely from documentary exhibits which are also before this court ‑ if that is what his Honour did ‑ this court is in as good a position as the learned magistrate to judge that question. But in so far as his Honour found that neither driver knew exactly how it had occurred and that both had a sense of bafflement about them, and in making decisions about which aspects of their evidence were reliable and based on genuine and not reconstructed memory, his Honour had the advantage of watching and hearing the witnesses and getting that sense of the state of their recall which this court cannot fully grasp from a transcript.
In the second ground, the appellant complains of a failure to find that the appellant exited his driveway into the right‑hand lane in accordance with his evidence, there being no evidence to rebut that contention given that Mr Musitano did not see the path the Tesla took prior to noticing it just before the collision. The appellant therefore seeks to characterise his own evidence in that regard as uncontested, while the learned magistrate, it is said, found a version of events not supported by the evidence of either driver.
Somewhat contrary to the assertion that there was no evidence upon which to base the inference drawn, however, the appellant also complains that the photographs depicting the location of the damage to the vehicles were capable of another explanation consistent with the appellant's version of events and to which his Honour had no regard.
It is necessary to consider whether his Honour did indeed conjure a third version of the events of the collision, divorced from either or both of the accounts given by the drivers and based purely on the photographs of the damage to the vehicles.
Something which appeared to have been rather overlooked by the appellant's written submissions and initial oral submissions was that on no version of events was it ever possible for the appellant to have exited his driveway and pulled into the right‑hand southbound lane of Flinders without first having pulled into the left‑hand lane. The left‑hand lane lay between his driveway and the right‑hand lane. Every finding that his Honour made needs to be read and understood against that reality.
In cross‑examination, the annotated map which formed part of the appellant's insurance claim form was put to Mr Musitano as reflecting what had occurred. It purported to show the Tesla leaving the driveway and driving straight across the road in perpendicular fashion to reach the right‑hand lane, followed by a sharp turn to the left (south), heading south for a distance prior to the collision. Mr Musitano did not agree with the annotations. There was no evidence from the appellant that the map reflected the path of the Telsa.
There was evidence contrary to it. The appellant's description in his witness statement ‑ 'I turned left and moved into the right southbound lane on Flinders Street' ‑ contradicted the sketch and reflected a more natural manoeuvre. His evidence in cross‑examination that he 'veered over into the right from leaving my driveway. It was one continual movement from my driveway into the right lane', when coupled with his evidence in his statement, all described an exit from his driveway in a southerly direction as part of one continuous movement of veering or sweeping into the right‑hand lane to make his U‑turn. 'Veered' was the word the appellant chose to describe his path, after having 'turned left'.
There was evidence, referred to earlier, from which his Honour was able to conclude that the distance between the appellant's driveway and the ultimate point of impact in the southbound right‑hand lane was in the order of 40 m. Within that space of around 40 m, the appellant chose to leave his driveway, turning left and inevitably entering the left‑hand lane and then the right‑hand lane for the purpose of conducting a U‑turn. That manoeuvre inevitably involved him accelerating out of his driveway, but then also anticipating the impending U‑turn and slowing or stopping for its purpose.
The appellant did not, in his evidence‑in‑chief, estimate the speed at which he had travelled in leaving his driveway, progressing that short distance south and then slowing down to make the turn. The timeframes he suggested during live testimony in minutes were a moving feast, and found to be plainly incorrect in his Honour's wry comment that 'time wasn't his strong point'. Mr Musitano had testified that he was travelling at about 40 km per hour and had not yet reached the speed limit, implying that he was accelerating as would be expected. His speed at point of impact, having seen the Tesla and braked, he estimated to be 25 km per hour.
There was inferential reasoning available, based upon the estimated distance of around 40 m from the driveway to a point level with 237 Flinders which logically limited the timeframe of the entire scenario to a matter of seconds ‑ around four seconds approximately ‑ for the Tesla to leave the driveway and reach the point of the collision. The Tesla had also exited the driveway from a stationary position and then would have had to decelerate in anticipation of the U‑turn, adding some short time. At the same time, Mr Musitano, who had come through the intersection, was driving south in a straight line along Flinders, driving at 40 km per hour because he had 'not yet reached the speed limit', indicating that he was accelerating. His Honour acknowledged that it was 'impossible to be precise' about the timing. Still, this all happened in a few seconds.
His Honour found that the appellant pulled out from his driveway into the left‑hand lane and began to move over into the right‑hand lane as part of a 'sweeping manoeuvre' ‑ that he 'swept out from the left‑hand side of the road across the left‑hand lane and into the right‑hand lane' ‑ with the exact point of the 'so‑called' lane change being unknown.
That phrase 'the lane change, so‑called' is significant. His Honour was making it plain that he was not referring to a traditional lane change conducted over distance where a driver, established in one lane for a time, then changes lanes in a distinct manoeuvre ‑ as counsel for the appellant seemed to have understood from his Honour's reasons. There was not the time or distance for a series of manoeuvres. Rather, his Honour was intending to convey one sweeping movement from the driveway, moving south while also traversing the left lane into the right lane, with an inevitable lane change at some point, in the few seconds available to conduct the whole manoeuvre. His Honour then found the 'most likely version of events' was that the Tesla was 'only partly in the lane ‑ or at least, the rear right‑hand side was towards the left‑hand side' of the right‑hand lane at the point of impact. His Honour rejected the scenario that the Tesla had been established in the lane for some time and then at the point of the collision, waiting to turn, prior to impact.
Focusing not on the appellant's 'case' at trial but on the evidence the appellant actually gave, the difference between his Honour's findings as to how the Tesla arrived at the point of the collision and the appellant's own description was simply a question of degree. Once the appellant's version of being in the right‑hand lane for minutes was rejected ‑ and on no sensible view could that evidence have ever been accepted ‑ and it was appreciated that this all occurred within a timeframe of several seconds only, four seconds or slightly longer to complete the manoeuvre, then the difference between the appellant's description of the manoeuvre and how he arrived at that point and the learned magistrate's conclusion was one of degree.
It is too selective to submit, as counsel for the appellant submitted, that the evidence of Mr Musitano was consistent with the evidence of the appellant in that Mr Musitano placed the Tesla in front of the Audi, and yet his Honour rejected the proposition that the Tesla had been established in the lane in front of the Audi. It was never in issue that the Tesla was in front of the Audi at the point of impact, given that the front of the Audi had collided with the rear corner of the Tesla. It was inevitable that the Tesla was in front of the Audi at that point. Nothing in his Honour's reasons rejected that conclusion.
But to say that the Tesla was in front of the Audi at impact begs the critical questions of how and when it arrived there, and the relative positions of the cars on the road.
Mr Musitano (particularly once he had volunteered that he had made an assumption as to where the Tesla had come from) could not describe the path of the Tesla. His evidence was limited to the brief interval between seeing the Tesla and colliding with it. But Mr Musitano's version of events was not consistent with the appellant's position in that, by whatever path the Tesla took from the appellant's driveway to the point where Mr Musitano first noticed it, he described it as having 'suddenly veered into the right lane and collided' with the Audi, and said that the first time he saw the Tesla was when it 'crossed in front of' the Audi. Mr Musitano's description was certainly not that of a stationary, or almost stationary, Tesla established in the right-hand lane in front of him which he somehow failed to see until just before he drove into it but, rather, that of a car which suddenly crossed his path, too close to avoid.
Counsel representing the appellant at trial took the same position as counsel representing the appellant in this appeal, namely that, if Mr Musitano could not describe the path of the Tesla because he had not seen it until shortly prior to impact, then there was no evidence that the Tesla had been in the left lane, and no evidence that the Tesla had been anywhere other than directly in front of the Audi in the right‑hand lane for some time. Counsel at trial submitted to his Honour that it was not put to the appellant in cross‑examination that he was in the left lane when he tried to conduct a U‑turn and concluded: 'really, it's uncontested evidence that he was in the right lane'.
To the contrary, if his Honour had accepted Mr Musitano's evidence in its entirety, then that evidence placed the Tesla as coming across him at an angle perpendicular to the Audi. On that version of events, the Tesla could only have come from the left lane. The fact that Mr Musitano's account of the position of the Tesla was limited in duration did not remove from consideration his evidence as to what he did see.
His Honour did not accept the proposition that, if Mr Musitano was not able to give an account of the path of the Tesla prior to the point in time that he noticed its presence, then the collision could not have occurred in the way he described. His Honour did not reject every aspect of Mr Musitano's evidence. His Honour was entitled to take into account, and did take into account, the fact that Mr Musitano had not registered the presence of the Tesla until just prior to the collision. While his Honour concluded that Mr Musitano had failed to keep a proper lookout, in that he had only registered the presence of the Tesla when it 'suddenly veered into the right lane' ‑ and logically it was present on the road prior to that ‑ it did not follow that the appellant was, by exclusion, driving directly in front of the Audi for a sufficient time to be established in the right‑hand lane and waiting to turn, before Mr Musitano simply drove into the Tesla.
This was, after all, a car accident which occurred quickly, within a few seconds, two years prior to trial. In commenting that neither knew 'exactly' how the collision had occurred, his Honour clearly did not mean that he had abandoned their evidence in favour of deciding the case exclusively on the photographs of the damage to the cars, and I reject the submission that he did. His Honour accepted that the collision occurred at the location identified, that Mr Musitano had driven through the intersection and been in the right‑hand lane travelling south and that the appellant had exited his driveway at 246 Flinders having already seen the Audi, and conducted his sweeping manoeuvre across both lanes because he intended to make a U‑turn opposite 237. His Honour accepted Mr Musitano's evidence that he did not see the Tesla and had made an assumption about its path, and also impliedly accepted his evidence as to the positions of the cars post‑collision. His Honour accepted Mr Musitano's evidence as to the conversation following the collision, and the appellant's explanation, in so far as he testified about that conversation. His Honour gained none of that narrative from the photographs of the damage to the cars. And in assessing the possible explanations for the damage, his Honour engaged in a process of comparing the evident damage to the respective versions of events.
His Honour observed that it was not unusual for a witness to not be able to give a full account of the path of a vehicle and to be limited in his account to where the vehicle was when he noticed it, clearly referring to Mr Musitano's failure to notice the Tesla before it was in his path, when it was there to be seen had he been keeping a proper lookout. However, his Honour also acknowledged that a driver in Mr Musitano's position in the right‑hand lane may have plausibly (though negligently) failed to notice the Tesla because it was not in his path, until suddenly it was, by his Honour's observation:
Even if they did observe somebody come out of a driveway on the left‑hand side, it would not be an immediate or reasonable thought that the driver intended to pull out, cross one lane into the next lane … (emphasis added)
His Honour also observed that some inconsistencies in Mr Musitano's crash report and his evidence, bearing in mind his clarification of what he had assumed about the location of the appellant's driveway,
are appropriate for a driver suddenly presented with another vehicle coming into its path, rightly or wrongly …
And so, while his Honour did not ultimately accept that the Tesla had been driven sharply across the lanes and perpendicular to the Audi, he did not reject Mr Musitano's evidence in its entirety either, particularly given the clarifying concession made by the witness about his mistaken assumption, which narrowed the scope of his evidence. While Mr Musitano's evidence that he did not see the Tesla before it came across him was evidence of a failure to keep a proper look out, it was also evidence that the Tesla was likely not directly in his path until the last.
On no basis can it be said that Mr Musitano's evidence to the effect that the Tesla had suddenly come across him was consistent with the appellant's case or that, once Mr Musitano's inaccurate assumption that the Tesla had exited the driveway perpendicular to the road was dispensed with, then the appellant's version had gained the status of being uncontested evidence.
After giving at least some weight to the alleged admission following the collision, and having concluded that the manoeuvre intended by the appellant was risky and that he would have to be highly vigilant in executing it while any driver following would also have to be vigilant to anticipate it, his Honour found that, in order for the appellant to succeed in his case
he would have to establish that he had pulled out at a time when it was safe to do so, that he was, effectively, sitting in the lane waiting to turn, and that he was then thusly hit in the rear.
There is no complaint of that practical analysis of what the appellant needed to establish to succeed.
His Honour was not confined to a binary choice between two versions of events based on memory and perception. Parties to litigation should anticipate 'combinations and permutations of various findings' and conduct their case accordingly, both as to the evidence led and submissions made: Davie v Manuel [89]. Counsel should have anticipated that the learned magistrate might accept some but not all of the evidence of either witness, particularly when there was a body of objective evidence before the court which did not depend upon memory and perception. In assessing the two conflicting versions of events, his Honour turned to the photographs depicting the location of the damage to both vehicles and considered the location of the evident damage against the other evidence.
His Honour inferred from the point of impact on both cars (which was quite confined on the exteriors), seen against the backdrop of the broad context as to how the collision occurred, that the impact to both cars could have occurred in two ways ‑ either the perpendicular impact proposed by Mr Musitano, or a 45‑degree, or thereabouts, impact. In other words, using logic and lining up the respective points of damage between the two vehicles, his Honour could see two scenarios in terms of the relative position of the Tesla to the Audi. Just as his Honour added 'thereabouts' to the 45 degree scenario, so I would add 'thereabouts' to the perpendicular scenario, given the confined nature of the damage to both cars suggesting that, even in a perpendicular scenario, there must have been a slight angle with the cars offset from each other.
There was something of that flavour in his Honour's observations:
In my view, when he pulled out, he had to cross from the driveway on the left‑hand side of the road, across the left‑hand lane into the right‑hand lane, which required him to take note of and give way to Mr Musitano. I don't accept that the accident could have occurred with him pulling out and being established in the right‑hand lane at any particular period of time, and I consider that if the accident occurred with him sweeping into the right‑hand lane and then applying his brakes, that the failure to give way to Mr Musitano was negligent.
I also accept that there is little difference in substance between the appellant making it into the right‑hand lane so as to be in front of the Audi, but with not enough time for the manoeuvre to occur safely, and not making it fully into the right‑hand lane and there not being enough time for the manoeuvre to occur safely. His Honour did not make a finding as to the precise point of the lane change.
However I consider that, on a reading of the decision as a whole, his Honour's reasoning process was a multi‑factorial one, which included the inferences drawn as to the path of the Tesla. While his Honour did arrive at his conclusion whether the appellant had 'slowed suddenly or simply stopped', that alternative arose within the one scenario that his Honour had already inferred was the 'most logical version' of events.
The short time and space available and the riskiness of the manoeuvre were among the several factors taken into account in the ultimate conclusion. But they cannot be divorced from the remainder of his Honour's reasons for the conclusion that the collision could not have occurred with the appellant being 'established' in the right lane. In any event, no error was made out and the inferences drawn were well open.
There is a further aspect to the appellant's first two grounds of appeal, to which I now turn.
(b) Was there a procedural unfairness in the learned magistrate failing to comply with the rule in Browne v Dunn?
The appellant's complaint is that, before his Honour drew an inference to the effect that the Tesla was initially positioned in the left‑hand lane of Flinders before then moving into the right‑hand lane, a version of events for which neither party is said to have contended, his Honour should have put that proposition to the appellant in order to give the appellant the opportunity to meet that suggested version of events.
Despite the concession on behalf of the owner of the Audi and Mr Musitano that there may have been some unfairness to the appellant, I do not accept there was a breach of procedural fairness.
It is not suggested that his Honour considered the appellant to have been untruthful in his account, without the opportunity for the appellant to counter such an accusation. His Honour's reference to 'a sense of bafflement' on the part of both drivers indicates that his Honour made no such finding against either driver. The complaint is, rather, that his Honour arrived at a third version of events without that having been put to the appellant.
Once the limited time and space available to the appellant to conduct his manoeuvre ‑ and the inevitability of the Tesla having been in the left lane to commence with ‑ are appreciated, the difference between the appellant's version of events and the ultimate conclusion reached by his Honour is not as stark as the appellant suggests. Nor do I accept that neither witness had ever contended that the Tesla had commenced its manoeuvre in the left‑hand lane. On Mr Musitano's version of the Tesla coming suddenly across him in a perpendicular fashion, the Tesla can only have come from the left‑hand lane. On any description of the appellant's sweeping manoeuvre in veering across the two lanes, it was inevitable that he had commenced in the left-hand lane before reaching the right‑hand lane, and thereafter the difference was a matter of degree.
His Honour's conclusions as to the most probable means by which the collision occurred were not arrived at solely by reference to the photographs showing the external damage to the vehicles, but by a combination of those aspects of the appellant's evidence which his Honour accepted, those aspects of Mr Musitano's evidence which were accepted, what the photographs indicated as to the location of the damage to both vehicles, and simple logic based upon the likely timeframe and physical distance involved in the collision.
It cannot be said that the appellant entered this trial without an understanding that his version of events was challenged. The parties had exchanged witness statements and an order had been made well prior to trial that those witness statements were to form the examination‑in‑chief of each driver. The appellant and his counsel must therefore have known that Mr Musitano's evidence was to be to the effect that the Tesla had 'suddenly veered into the right lane' and come across him, such that he could not have avoided the collision.
Counsel for Mr Musitano had opened her case as follows:
The factual issue is, having seen the Audi travelling south along Flinders Street, was there sufficient time and space for [the appellant] to enter Flinders Street and complete a U‑turn without interfering with the movement of other traffic including Mr Musitano in the Audi?
The alternative conclusions can be put as, that [the appellant], without reasonable care for other road users, pulled in front of Mr Musitano to complete a U‑turn manoeuvre without allowing sufficient time or space for Mr Musitano to avoid a collision, or that [the appellant] was positioned in the right lane of Flinders Street with sufficient time and space for Mr Musitano to observe his position and intended action, and Mr Musitano failed to account for [the appellant's] position causing the collision.
Counsel characterised the case against the appellant as a failure to give way and a failure to pay heed to the presence of the Audi on the road, when the appellant was obliged to do so, given that he was entering the carriageway.
Mr Musitano also testified first in the trial. He did not resile from the contents of his statement to the effect that the Tesla had 'suddenly veered into the right lane and collided with the front left bumper'. He did concede that the position he had marked in his crash report as to where on Flinders the collision had occurred had inaccurately placed the point of the collision at a point in line with 246 Flinders, which is where the appellant lived. Mr Musitano had based that on the appellant having mentioned after the collision that he lived across the road. Mr Musitano had reconstructed in his memory where that collision must have occurred, and volunteered that he had made that assumption, but he did not resile in his evidence from his description of what he saw the Tesla do immediately prior to the collision.
Mr Musitano's version of events was inconsistent with the Tesla being established in the right lane for any period of time, let alone a sufficient period of time prior to the collision. His concessions about the assumptions he had made did not alter his evidence as to what he saw when he did see the Tesla. And his evidence as to what he saw was not inevitably disproved merely because the collision had not occurred opposite the appellant's driveway, but further south. There was more than one factual scenario which could account for the Tesla coming across the Audi at some angle, be that perpendicular or at some less dramatic angle, when it had been the appellant's intention to conduct a U‑turn.
Mr Musitano testified as to the position the cars had come to rest following the impact. He was not tackled on that evidence in cross‑examination and counsel for the appellant had the benefit of that evidence when choosing what evidence to lead from the appellant. Mr Musitano testified as to the conversation following the collision. It was readily apparent that an admission against interest by the appellant was being relied upon. Mr Musitano was not tackled on that evidence in cross examination.
The photographs depicting the damage to the vehicles were in an agreed set of documents which were tendered before the court. Clearly the appellant and his counsel were on notice of the respective points of damage to the vehicles.
The appellant and his counsel therefore had the benefit not only of the written statement of Mr Musitano, but also the photographs of the damage to the vehicles and Mr Musitano's oral testimony prior to the appellant entering the witness box himself.
It cannot be said that the appellant did not have the opportunity to testify about every aspect of the collision ‑ what assessment he made prior to exiting the driveway and his position on the road at all times, the position of the Audi, precisely how the impact occurred, the angles of the vehicles at impact, the position in which they came to rest, the precise conversation following the collision, and the damage to the vehicles. The whole trial was about his and Mr Musitano's manner of driving. Every aspect of their driving was obviously relevant.
And the appellant did testify about his assessment of the situation and his driving from the moment he left his driveway to the point of impact. He testified about the precise moments that were the subject of his Honour's conclusions, and the appellant's position in his evidence‑in‑chief was that he had 'moved into the right southbound lane' and had travelled along in that lane for a distance of 'approximately 40 m' and 'then indicated to turn right'. He claimed in cross‑examination to have been driving south for 'three minutes maximum' before settling on two minutes. It is apparent from the transcript that counsel for Mr Musitano implied to the appellant that his evidence as to the timeframe was impossible to accept. His own counsel had the opportunity of re‑examination.
It was or ought to have been obvious that his Honour would have to make a factual decision about how the collision had occurred and had conflicting accounts to consider, and would give consideration to what inferences properly arose from the objective evidence. It was also obvious that each witness was describing events that occurred quickly, and the collision had taken both drivers by surprise. It was always open to his Honour to accept some aspects of a witness's evidence and not others. The task before the learned magistrate was not a binary choice between two flawed accounts. At no stage was the appellant's evidence uncontested, and his Honour was not obliged to accept it.
I do not consider that the appellant was unfairly denied an opportunity to meet the proposition that he was not established in the right‑hand lane prior to the collision, or any variation on the theme that he had entered the right‑hand lane too close to the Audi, that he had come across the path of the Audi just prior to impact, or that he had come from the left and slowed to make his U‑turn without sufficient space in which to do so ‑ all of these variations were all obviously to be countered by the appellant. He took the opportunity to testify about the path the Tesla took and the timeframe involved and his testimony, if accepted as to the essentials of his account, would have countered such competing scenarios. His account was simply not accepted as accurate in some essential matters.
Had his Honour chosen to put his final conclusions to the appellant for his comment, I will assume for the sake of argument that the appellant would have maintained his version of events. It was no part of the appellant's submissions on appeal that there was some body of evidence which would have been led by counsel, had it only been appreciated that his Honour might consider that the Tesla made a sweeping manoeuvre across the lanes and swept into the right‑hand lane from the left just prior to the collision. The consequence of the breach of the rule was simply said to be that his Honour could not in fairness reject the appellant's version of events, and/or should have given greater weight to a flawed eye‑witness account than any inference to be drawn from the photographs depicting the damage to the vehicles. I disagree. His Honour, to the extent to which he did so, was entitled to do both.
It cannot be said that the appellant was deprived of an opportunity to counter the inferences his Honour ultimately drew. The first two grounds of appeal are not made out.
Grounds 3 and 4 - the appellant's submissions
These two grounds concern an argument by the appellant that the learned magistrate erred in finding Mr Musitano only 20% responsible for the collision, when his Honour should have found him either entirely responsible for the collision on the basis that he had failed to keep a proper look out or, alternatively, that the apportionment should have at least reflected a greater share of responsibility to Mr Musitano. To the extent that the appellant's argument was dependant on success in grounds 1 and 2, there is no need to repeat what has been said above. But, in any event, the appellant argues that the ultimate breakdown of responsibility attributed too little blame to Mr Musitano's admitted failure to see the Tesla until the last, when he estimated it was about 10 m away and coming across his path.
Grounds 3 and 4 - Mr Musitano's submissions
Without repeating submissions which have been dealt with already, counsel for Mr Musitano submitted that, once his Honour had dismissed the proposition that the appellant had established himself in the right‑hand lane for some period of time then it followed, and his Honour found, that the appellant had failed to give way as he was obliged to do, and caused the collision. The respondent took no issue with the 20 % attribution of responsibility to Mr Musitano based on his failure to keep a proper lookout.
Grounds 3 and 4 - disposition
Section 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act1947 (WA) provides:
Whenever in any claim for damages founded on an allegation of negligence the court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgement, but the court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.
His Honour was hearing two actions at the same time. The appellant was the plaintiff in one and the defendant in the other. At the conclusion of his Honour's reasons he attributed 20% contributory negligence to Mr Musitano and 80% responsibility to the appellant for the collision, treating Mr Musitano as the defendant for the purposes of s 4 above. His Honour could equally have treated the appellant as the defendant, but it made no difference to the figures.
The same principles apply to a finding of liability on account of contributory negligence as apply to a finding of liability on account of negligence. Section 5K of the CLA provides:
Standard of contributory negligence
(1)the principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Apportionment of liability between a negligent party and a party who has been found contributorily negligent involves the exercise of an individual choice or discretion. The question of apportionment is 'a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 [8]; (1985) 59 ALJR 492, 493 - 494; (1985) 59 ALR 529, 532, citing British Fame (Owners) v Macgregor (Owners)[1943] AC 197, 201.
Such a finding, if made by a judge, is not lightly reviewed: Podrebersek v Australian Iron & Steel Pty Ltd [8].
The role of an appellate court in reviewing such apportionment was discussed by Buss JA in O'Connor v Insurance Commission of Western Australia [2016] WASCA 95 (O'Connor v ICWA). An appellate court will not interfere with the trial judge's decision on apportionment unless the trial judge made the kind of error that would justify an appellate court setting aside a discretionary decision: O'Connor v ICWA, [59] Buss JA. Error in that context is in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt and McTiernan JJ):
It is not enough that the judges composing the appellate consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
An assessment of the culpability of the parties for the purposes of apportionment requires a consideration of the relative importance of the conduct of each party in causing the damage: O'Connor v ICWA [61] (Buss JA).
It was apparent from his Honour's reasons that he found that a reasonable person in the position of Mr Musitano ought to have seen the appellant as he exited his driveway and then swept out from the left‑hand side of the road and into the right‑hand lane because, logically, the appellant was there to be seen. His Honour also found that, having seen the appellant, a person in Mr Musitano's position could have taken some action such as 'backing off the speed or taking some other action', which may have either avoided the collision, or minimised the impact. In other words, his Honour found that Mr Musitano might have driven defensively had he noticed the Tesla from the outset.
That reasoning was consistent with the following passage from the judgment of the plurality in Manley v Alexander (2005) 80 ALJR 413 [11]; (2005) 223 ALR 228 (Gummow, Kirby and Hayne JJ):
Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.
The learned magistrate continued, however:
Even if they did observe somebody come out of a driveway on the left‑hand side, it would not be an immediate or reasonable thought that the driver intended to pull out, cross one lane into the next lane, and then slow or stop in order to conduct a U-turn. It required a high level of vigilance on the part of [the appellant] and also a level of vigilance on Mr Musitano to work out what this manoeuvre was going to be and to be able to respond to it.
Those comments, combined with his Honour's conclusions as to how the collision actually occurred indicated that, in his Honour's view, while it was apparent that Mr Musitano had failed to keep a proper look out because he had failed to see a vehicle that was there to be seen, this was not a case in which he had failed inexplicably to see a car which was established in his own lane ahead of him until he was only 10 m from it which, if the appellant's version of events was correct, must have been the extent of Mr Musitano's failure to notice the Tesla.
Rather, Mr Musitano had failed to notice the Tesla that was, firstly, stationary in a driveway on the left‑hand side of the road when Mr Musitano was occupying the right‑hand lane, and then failed to notice it as it entered and proceeded on the roadway on his left until the Tesla was suddenly in the Audi's path and slowing or stopping to make the U‑turn.
While his Honour commented that drivers who suggest that another vehicle 'came out of nowhere' are mostly made by drivers who were not keeping a proper look out, and while Mr Musitano would have seen the appellant's car at all times had he been keeping a proper look out, his Honour was also entitled to find that the appellant conducted a 'risky' manoeuvre which was unlikely to be anticipated by a driver in Mr Musitano's position, and to add to that the uncontroversial fact that the appellant had commenced that manoeuvre in the knowledge that the Audi was already driving south on Flinders. The likely timeframe was a matter of a few seconds and the likely distance a matter of about 40 m for the appellant to conduct his manoeuvre from his driveway to the point of impact.
Based on the findings of fact which were open to and justifiably made by his Honour as to the appellant's manner of conducting his intended manoeuvre, it was open to his Honour to allow that Mr Musitano's tunnelled vision in observing only what was in the lane ahead of him, and his failure to anticipate what the appellant intended to do, was not the predominant cause of the collision. Indeed, his Honour also allowed that, even if Mr Musitano had seen the Tesla earlier than he did and, as a result, had backed off his speed, it was not certain he could by braking have entirely avoided the collision, as opposed to having reduced the force of the impact, although he might have avoided it altogether.
By contrast, had the appellant observed the obligation on him to give way to oncoming traffic, and waited until the way was clear to conduct his manoeuvre, the collision could not have occurred. It was open to his Honour to apportion only 20% liability to Mr Musitano as he did, and the figure was neither unreasonable nor plainly unjust.
Accordingly, grounds 3 and 4 also fail, and the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DD
Associate to Judge Sweeney
5 SEPTEMBER 2025
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