Gater v Tassone - [2019] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
GATER v TASSONE
[2019] SADC 67
Judgment of His Honour Judge Durrant
31 May 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The review is from the judgment of a Magistrate concerning apportionment of liability for property damage arising from a motor vehicle accident. No flaw or error found in Magistrate's reasons.
Held: Application dismissed. The Court declines to record judgment.
District Court Act 1991, referred to.

GATER v TASSONE
[2019] SADC 67
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

This matter comes before the Court by way of an Application to review a Minor Civil Decision of a Magistrate delivered ex tempore on 14 February 2019.
This decision on review, under s 38 of the Magistrates Court Act, is final and not subject to appeal.
The applicant, Ms Jennie Gater, represented herself at the hearing. The respondent, Mr Paul Tassone, did not appear but filed a Written Case.
The respondent brought a claim for compensation in the Magistrates Court for repairs to his motor vehicle arising from an accident that occurred on 6 May 2017 at Albermarle Avenue, Trinity Gardens, South Australia.
The applicant denied liability for the damage and brought a counterclaim for the cost of repairs and tow fees arising from damage to her motor vehicle which was being driven by her husband, Mr Burdeniuk, at the time of the collision.
The learned Magistrate, at trial on 14 February 2019, awarded to the respondent the full quantum of his claim and dismissed the applicant’s counterclaim. Mr Burdenuik, and Mr Tassone who was driving his car at the relevant time, gave evidence at trial. The learned Magistrate was not assisted by any other witness to the accident but photographs of the area of the accident and of the damage to the vehicles were tendered. They showed parking lanes on both sides of the road with two single lanes for traffic travelling in each direction east to west. Each party also produced and tendered at trial a map detailing their version of events.
The learned Magistrate found that the two drivers agreed they had both made a right-hand turn from Portrush Road, Trinity Gardens into Albermarle Avenue with Mr Tassone’s vehicle following the applicant’s vehicle.
At trial, Mr Burdeniuk said that as he approached the intersection between Albermarle and Amherst Avenue he slowed his vehicle, activated his right indicator and safely commenced a right-hand turn with the intention of turning into Amherst Avenue. He said his vehicle was impacted from behind by Mr Tassone’s vehicle which had crossed over onto the other side of the road to overtake.
Mr Tassone gave evidence that the applicant’s vehicle pulled over into the left-hand lane and then radically attempted to do a U-turn without having any regard for traffic following behind.
The learned Magistrate considered the evidence of both Mr Burdeniuk and Mr Tassone as to how the accident had occurred. She concluded that the photographs tendered were consistent with both versions of events and did not assist her in resolving the vastly different versions put forward. In her reasons, the learned Magistrate said that both witnesses presented well and gave what she considered to be honest and straight forward accounts of what happened. However, after hearing the evidence, she preferred Mr Tassone’s version of events.
In particular, the learned Magistrate noted there was some dispute about Mr Tassone’s driving behaviour before the incident. Mr Burdeniuk maintained that while driving along Portrush Road from at least The Parade at Norwood, Mr Tassone had been driving in an erratic manner. Mr Tassone maintained that he had turned onto Portrush Road from Magill Rd and that he was not driving erratically at any time. The Magistrate found Mr Tassone’s explanation for both the reason for his travel and the route he took to be compelling.
The learned Magistrate further found that, it was more likely than not, that immediately prior to the collision Mr Burdeniuk’s vehicle pulled to the left-hand side and commenced a right-hand turn in front of Mr Tassone’s vehicle without warning and that Mr Tassone was unable to take evasive action.
Finally, the learned Magistrate found that Mr Tassone’s vehicle collided with Mr Burdeniuk’s vehicle and he found Mr Burdeniuk 100% liable for the accident.
The applicant sought a review of the learned Magistrate’s award and an award on her counterclaim as follows:
1.The setting aside of the judgment of the Magistrates Court dated 14 February 2019.
2.     The apportionment of liability be re-assessed by this Court.
3.     The damages entitlement of the respondent and applicant to be re-assessed.
4.     An order for costs.
5.     Such further and other orders that the Court deems fit.
The respondent, by Cross Notice, sought an order that a judgment be awarded in the respondent’s favour. At trial it has been agreed, given both parties were insured and representatives of the insurers were present, that the recording of a judgement was not necessary.
In its Application for review, the applicant says that, at trial, the learned Magistrate failed to properly consider the evidence of Mr Burdeniuk and should have apportioned liability in accordance with his evidence.
At the hearing of the review, the applicant and her husband restated the evidence given at trail and submitted that the version of events given by Mr Burdeniuk should be preferred to that given by Mr Tassone. The applicant did not draw my attention to any error of reasoning or principle by the learned Magistrate.
The Written Case of the respondent contended that the version of events of the applicant was improbable and that the respondent would not have overtaken the vehicle in the circumstances which are contended because the applicant’s indicator would have been on. He asked the Court to find, on the balance of probabilities, that a reasonable person would not attempt to overtake a vehicle in the left lane by crossing over into the right-hand lane if the person in front of them was indicating to turn right. He said that Mr Burdeniuk had a duty to give way to vehicles before commencing a U-turn, which he failed to do.
Further, the respondent denied the applicant’s assertion that he was not driving reasonably leading up to and at the time of the collision.
Having reviewed the reasons of the Magistrate, I can find no flaw or error in her reasoning. The Court below was required to resolve, on the balance of probabilities, a factual dispute. The learned Magistrate, having had the benefit of hearing the evidence of both drivers and absent any other evidence from witnesses that could assist in that task, found for the respondent.
Having reviewed the transcript at trial, the exhibits tendered and having considered the submissions of the applicant upon review and the Written Case, I find that there is no good reason for this Court to set aside the judgment of the learned Magistrate. The findings of the learned Magistrate were reasonably open to her on the evidence and she was well placed to assess the evidence of both drivers.
As noted, no judgment was recorded because this was essentially a matter between insurers. The respondent now seeks an order that judgment be recorded. A representative of the insurer for the applicant was in attendance at the review and through the applicant indicated that a judgment would not be necessary in the event the review was dismissed. Accordingly, I decline to record a judgment but will grant liberty to apply.
I dismiss the application for review and grant liberty to apply in respect of the recording of a judgment. I make no order as to costs.