Fitton v Scott

[2010] QDC 300

[2010] QDC 300

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DODDS
Appeal No D294 of 2009

JASON WESLEY JON FITTON	Appellant
and
EDWARD JOHN SCOTT	Respondent
and
SARAH SCOTT	Second Respondent
MAROOCHYDORE ..DATE 09/08/2010 JUDGMENT

1-1

HIS HONOUR: This is an appeal pursuant to section 45 of the motor vehicle collision which occurred on 4 January 2008.

Magistrates Court Act 1921 against the decision of a

On the 1st of July 2008 the respondent/plaintiff commenced the proceeding alleging the collision was due to the appellant/defendant's negligence. The appellant defended and counter claimed for damages in the sum of $3,500 alleging the collision was due to the negligence of the driver of the respondent's motor vehicle, one Sarah Scott. On 14 May 2009 the appellant issued a third party notice, claiming indemnity or contribution from Ms Scott.

The trial before the Magistrate was about liability; quantum of damages had been agreed. On 18 September 2009 the Magistrate found the appellant entirely responsible for the damage to the respondent's motor vehicle sustained in the collision. He gave judgment in the amount of $3,280.03; costs in the sum of $3,371.60 and interest in the sum of $558.94. It follows from the Magistrate's decision that the counter claim and the third party proceedings failed.

The grounds of appeal are: the decision of the Magistrate was against the weight of the evidence, the Magistrate's decision that the appellant was entirely responsible for the collision involved a failure to properly assess liability in light of

the findings of fact the Magistrate made.

The appeal sought: the Magistrate's decision be set aside and either the respondent be found entirely responsible for the collision, responsibility for the collision be apportioned 80 per cent to the respondent and 20 per cent to the appellant or in such other proportions as the Court saw fit. 1-2 JUDGMENT

Section 46 of the Magistrates Court Act 1921 provides for the jurisdiction of the District Court on an appeal such as this. Relevantly, for present purposes, it provides that the

District Court may, "(a) draw inferences of fact from facts found by the Magistrates Court or from admitted facts or facts not disputed".

I have read the transcript of the evidence and the Magistrate's decision. Evidence received by the Magistrate came from Ms Scott and from the appellant, who had been the driver of the other vehicle involved in the collision. The findings of fact made by the Magistrate were supported by the evidence. They are not challenged.

The collision occurred on Aerodrome Road at its intersection with Fourth Avenue, Maroochydore. Immediately prior to the collision, the respondent's vehicle was proceeding from the direction of Maroochydore in the direction of Mooloolaba, which I shall describe as travelling in an outbound direction. The appellant's vehicle, which had been travelling in an inbound direction in Aerodrome Road, was in the process of turning right from Aerodrome Road into Fourth Avenue and was crossing the outbound traffic lanes.

Aerodrome Road in the vicinity of where the collision occurred consists of two traffic lanes travelling in an outbound direction and two traffic lanes travelling in an inbound direction, separated by a centre island. On each side of Aerodrome Road, between the footpath and gutter and the traffic lanes, there is parking for vehicles. For vehicles travelling in an inbound direction on Aerodrome Road, wishing to turn right into Fourth Avenue, there is a short, right, turning lane between the island and the two inbound traffic lanes. 1-3 JUDGMENT

At about 9 p.m. on the date of the collision, Ms Scott had been parked in the last parking bay on the outbound side of Aerodrome Road, before its intersection with Fourth Avenue. She said in her evidence, and the Magistrate accepted, that she activated her indicator, her headlights were on and she pulled out from that parking bay into the left-hand outbound traffic lane on Aerodrome Road. The appellant's car turned across in front of her to proceed into Fourth Avenue. The first time she noticed the vehicle was when it was just to her right, immediately prior to impact. She said her speed was less than 40 kilometres per hour and her vehicle travelled only about 20 metres to the point of impact.

The appellant, in his evidence, said that he had been proceeding in an inbound direction in Aerodrome Road. He had indicated to turn right and had moved his vehicle into the right-hand turning lane to turn right into Fourth Avenue. He had stopped and then commenced a turn across the outbound lanes of Aerodrome Road. He said he was nearly across Aerodrome Road when the respondent's motor vehicle pulled out from its parking spot and impacted into the side of his vehicle. He saw the respondent's vehicle immediately before impact. 1-4 JUDGMENT

The Magistrate was aware the evidence involved a credibility issue. There was a difference in the evidence of the appellant and Ms Scott about where the impact occurred on the width of the outbound lanes of Aerodrome Road. The appellant said he was partially in to Fourth Avenue when the impact occurred. Ms Scott said the impact occurred with her car in her left-hand traffic lane of Aerodrome Road. The Magistrate accepted Ms Scott's evidence about this. He noted Ms Scott's vehicle was more damaged to the left-hand front than the right.

The Magistrate found that Ms Scott was concentrating on moving from where she had been parked into the left-hand, outbound, traffic lane and looked in her rear vision mirrors. He found the appellant was intending to go across the outbound traffic lanes of Aerodrome Road and should have noticed that the respondent's vehicle had it's headlights on and had indicated. Had he observed that, he would have avoided the collision.

Drivers of motor vehicles on the road are under a duty to take reasonable care. In Sibley v Kais [1967] 41 ALJR 220 the High Court, consisting of Barwick CJ, McTeirnan, Kitto, Taylor and Owen JJ, in a joint judgment said, "The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to reasonable care is of course a question of fact but to our mind, generally speaking, reasonable care requires each driver, as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact should he find another vehicle approaching from his right or from his left in such a fashion that if both vehicles continue, a collision may reasonably be expected". 1-5 JUDGMENT

In the present case, there was a statutory requirement on the appellant to give way to oncoming vehicles when turning across Aerodrome Road - see section 72(5)(b) Transport Operations (Road Use Management - Road Rules) Regulation 2009 (The Regulations). A particular of negligence in the statement of claim alleged a failure to give right of way. There is also a statutory requirement on drivers driving from a parking bay on the road into traffic lanes on the road to give way to traffic turning right into the traffic lanes - see section 74(1)(a) and section 13 of the regulations, particularly subsection (3)(a). Neither pleading descended to particularising the regulations I have referred to.

Given the distance the Magistrate found the respondent's vehicle had travelled from where it had been parked to where the impact occurred, once each driver had committed to the manoeuvre their vehicle was undertaking, collision was virtually immediate. The Magistrate's finding that the appellant was not travelling at a fast speed and that the impact occurred where Ms Scott said it did, means that the appellant's motor vehicle must have been close to beginning to make its turn across Aerodrome Road at the time Ms Scott pulled out from her parking spot into the left-hand, outbound, traffic lane. The appellant's motor vehicle had crossed one traffic lane before impact. 1-6 JUDGMENT

Ms Scott had said in her evidence that she was aware that the intersection could present a danger from traffic turning across Aerodrome Road and had looked and seen no vehicle when she pulled out. However, the Magistrate's findings mean the appellant's vehicle must have been in the vicinity of where it commenced its turn across Aerodrome Road. Had Ms Scott seen and perceived it as a potential danger at that point, she should have been able to avoid a collision. On the other hand, on the Magistrate's findings, the appellant should have seen the respondent's vehicle emerging from its parking spot into the left-hand traffic lane in Aerodrome Road, perceived it as a potential danger and not driven his vehicle into its path.

I consider the Magistrate's conclusion about responsibility for the collision to be incorrect. On the Magistrate's findings, both parties failed to keep a proper lookout in the particular circumstances. Ms Scott failed to notice the appellant's vehicle in the turning lane as a potential danger and drive accordingly. The appellant failed to notice Ms Scott's vehicle leaving its parking space and proceeding into the traffic lane and thus as a potential danger.

In the event the appellant drove across the direction of for the respondent against the appellant in the sum of $1,246; that amount as I reckon it is the difference between the amounts of each parties claim apportioned accordingly. 1-7 JUDGMENT

travel of Ms Scott's vehicle and Ms Scott drove into the side
of the appellant's vehicle. Responsibility for the collision
should be 70 per cent on the part of the appellant and 30 per
cent on the part of Ms Scott.

Now, I notice the Magistrate ordered interest; on what basis did he calculate interest; was it 10 per cent?

MR SHEARER: Yes, 10 per cent.
HIS HONOUR: And was it from the date of the accident or the date of the claim?

MR SHEARER: The date of the - date of the accident, I think. HIS HONOUR: The date of the accident. MR CROSBY: I believe so. HIS HONOUR: Right. MR CROSBY: I think we handed up or agreed on these matters. HIS HONOUR: I order interest attach to the judgment sum at 10 per cent from the date of the collision which was the 4th of January 2008 to the date of judgment, today.	1-8	JUDGMENT
…

HIS HONOUR: It follows from what I have said, that the are as I previously indicated.

Regarding the matter of costs, the parties have discussed what should be done in view of the orders I have made. They have, they informed me, reached a decision about what the final outcome in monetary terms of the appeal should be. As I understand it, the figure they have reached, or agreed upon, incorporates the judgment amount which I have ordered for the respondent against the appellant, the interest on that judgment amount for the period and at the rate I have indicated, and the various costs of the parties to both the Magistrates Court proceeding and the appeal.

Accordingly, I will make no particular orders about costs. The matter will be adjourned to the settlement list for the sum agreed upon to be paid by the appellant to the respondent to dispose of the matter. That sum, I am informed, is $369.24. I think that is the appropriate way to finalise it, gentlemen.

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1-9 JUDGMENT