Glen David Staker v Darren Andrew Pearson No. 4154 Judgment No. SCGRG 91/2196 Number of Pages 6 Negligence

[1993] SASC 4154

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Negligence - apportionment of responsibility and damages - Appeal against finding that plaintiff had failed to discharge onus of proving his case - motor vehicle accident - claim for property damage - magistrate felt unable to make finding of fact as to negligence - inferences clearly arose on facts not in dispute - each party to blame - amendment allowed to plead contributory negligence - responsibility apportioned.
Bassett v Host (1982) 1 NSWLR 206; Antonow v Leane (1990) 53 SASR 60; Tenhoopen v Nilsen (1989) 150 LSJS 16; Howie v SA Police (Olsson J, 13 August 1993, unreported); Stoeckel v Harpas (1971) 1 SASR 172 and Holloway v McFeeters (1956) 94 CLR 470, applied.

HRNG ADELAIDE, 27 August 1993 #DATE 8:9:1993
Counsel for appellant:     Mr R Hasda
Solicitors for appellant:    Hasda Bellman
Respondent Pearson:         In person

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against the dismissal by a stipendiary magistrate of a claim for damages made by the appellant against the respondent. 2. By summons issued on 19 May 1988, the appellant claimed from the respondent $5,255.90, being the net loss sustained when his Mazda 626 motor car was damaged beyond economic repair on 9 October 1987. It was pleaded that, on that day, the appellant was driving his motor vehicle west along Springbank Road; and that, when he entered the intersection of that road with Goodwood Road, a Holden utility driven by the respondent south along Goodwood Road collided with his vehicle. 3. No appearance was initially filed by the respondent and, on 19 January 1990, damages were assessed at the figure claimed and judgment for them and costs entered in favour of the appellant. 4. On 18 January 1991 the respondent obtained an order setting aside the default judgment, on the basis that he had not received the original summons. He thereafter, by his solicitor, entered a simple appearance. He did not either expressly plead to the particulars of claim or seek to prosecute a counterclaim against the appellant. Specifically, there was no plea of contributory negligence against the appellant. 5. At trial both the appellant and the respondent gave oral evidence. No other witnesses were called. In his ex tempore reasons, the learned magistrate recorded that both parties presented as good witnesses. The plaintiff was represented by counsel and the defendant appeared in person. 6. Having recited the broad effect of the evidence given by each party and the direct conflict which arose upon it, the learned magistrate concluded his reasons by what was, with respect, a somewhat extraordinary decision expressed in these terms:-
    "We make decisions of act in this court on the balance of
    probabilities. What is more likely on the evidence before me?
    The plaintiff bears the onus of proof. I have carefully weighed
    all the factors here and I cannot see how I can resolve it. I
    don't know who is right and in those circumstances,
    unsatisfactory though it is, I shouldn't notionally toss a coin,
    which is all I would be doing to resolve this dispute. So I
    have to send it away undecided. The plaintiff has his costs
    that were thrown away." That most unsatisfactory result was arrived at against a background of evidence which I shall now attempt to summarise. 7. The plaintiff deposed that, at about midnight on 9 October 1987, he was driving his Mazda 626 in a westerly direction along Springbank Road. He was on his way home. 8. He said that he approached the intersection of Springbank Road with Goodwood Road (which is controlled by traffic lights) with the intention of turning to his right into Goodwood Road. However, as he entered the turn right lane leading up to the actual intersection, a red, turn right arrow was illuminated. He therefore stopped and waited for the green arrow. After a short time the green arrow illuminated and he proceeded forward into the intersection following the normal, "turn right" line of travel. 9. It was the appellant's evidence that, as he proceeded through the intersection he suddenly became aware of a fast moving vehicle approaching from his right. 10. It was common ground that a collision then occurred, as a consequence of which the appellant was temporarily rendered unconscious and his vehicle was badly damaged. It is not disputed that the respondent was the driver of the other vehicle and that the appellant's vehicle sustained damage as asserted. The net loss to the appellant, after selling the wreck of his vehicle, was $5,255.90. 11. The material before the learned magistrate led him to describe the actual impact and what immediately followed as under:-
    "... The front left hand corner of the defendant's vehicle,
    a one tonne Holden ute collided with the front driver's side of
    the plaintiff's vehicle, a Mazda 626 causing extensive damage to
    the Mazda. This forced the wheel arch on to the wheel of the
    ute which then locked up leaving a skid mark as the ute careered
    across to the opposite side of the road and mounted the kerb.
    The defendant didn't have a seat belt on and was thrown to the
    floor. The plaintiff was rendered unconscious. They had no
    conversation afterwards which constituted any admissions by
    either party. The defendant Mr Pearson got out of his utility
    and approached the plaintiff, Mr Staker, in his words, to abuse
    him. There was no substantial alcohol involved. Both were alco
    tested. Both had had something to drink. Neither was required
    to undertake a breath test." 12. Photographs tendered depicted the damage to the appellant's vehicle. These were not available to me, but it was conceded by both parties that the Mazda was struck on the offside between the driver's door and the front of the vehicle. Clearly what took place was a very heavy impact. The front of the utility had to be replaced. 13. The appellant told the learned magistrate that, at the time of the impact, his turn right indicator lights were operating and his vehicle was moving at a speed of between 10 and 15 kph. He assessed that the vehicle driven by the respondent was travelling at a speed in excess of the speed limit for the area. 14. In cross examination the appellant conceded that he did not specifically look to his right for oncoming traffic, until shortly after he moved off. He was, plainly, initially focusing attention on the traffic lights. 15. The respondent testified that, at the time of the accident, he had been driving his utility south along Goodwood Road in the lane nearest the centre line. It was his impression that the appellant had simply driven into the intersection without stopping at the lights. He himself was heading for a Caltex Service Station on the western side of Goodwood Road. 16. The respondent insisted, in cross examination, that the traffic lights facing him were showing green as he closed up on the intersection and that they remained green as he reached the intersection. He conceded that he did not notice the presence of the appellant's vehicle until it "was virtually right in front of me" and that he did not even have time to put his brakes on, much less swerve. He did not realise where it had come from until after the accident. 17. The respondent told counsel for the appellant that there was nothing to prevent him from seeing the appellant's vehicle prior to impact, but volunteered the statement "If I had a green light why would I want to look left". He agreed that the intersection was fairly well lit. 18. When further cross examined the respondent estimated his speed at 60-65kph. It was his memory that the impact occurred at a point on the eastern side of the lane nearest the centre of the road. 19. In relation to the question of his lookout the respondent had this to say:-
    "Q. Do you remember what direction you were looking in
    just before the accident.
    A. I would of been looking straight ahead and more than
    likely looking at the Caltex Service Station at the same time
    making sure it was open. I was pretty sure it was any way.
    Q. You might have been looking at it to check that it was
    open.
    A. Yes, that's possible." 20. Before indicating his conclusion, in terms which I have earlier recited, the learned magistrate summarized the situation as follows:-
    "There are no external factors here to help me resolve
    this conflict as to what colour the lights were. Presumably, if
    there was a green light for Mr Pearson, the lights would show
    amber and red and then there would be a delay before a green
    arrow came on for Mr Staker. If Mr Staker was running a red
    turn right arrow one might have expected him to check to his
    right to make sure there was no one going through a green light.
    Equally if Mr Pearson, who had only come from two hundred metres
    away was presented with an amber light which then went red, one
    would have expected him to check that no vehicles were about to
    enter the intersection. Neither of them checked. Both of them
    are adamant they had the green light." 21. By his notice of appeal the appellant seeks to challenge the propriety of the dismissal of his claim on these grounds:-
     "1. That the Learned Special Magistrate was wrong in
    fact and in law and in finding that the plaintiff had not
    discharged it onus of proof in relation to liability.
     2. That the finding by the Learned Special Magistrate that he
    was unable to ascertain how to apportion the liability was
    contrary to the evidence and the weight of the evidence.
     3. That there was more than adequate and weight of evidence
    for the Learned Special Magistrate to have found some liability
    on the part of the defendant, and that the Learned Special
    Magistrate incorrectly gave weight to the fact that no
    counterclaim was lodged by the defendant, in arriving at a
determination." 22. I entertain no doubt in this matter that the decision of the learned magistrate cannot be supported. It seems to me, with respect, that, having regard to the state of the pleadings and on the plain inferences which necessarily arise from at least those facts which are not in dispute, the necessary end result of these proceedings was beyond doubt and lay in a very different direction from that taken by the learned magistrate. 23. The first point which must firmly be borne in mind is that, as was pointed out by Hope JA in Bassett v Host (1982) 1 NSWLR 206 at 207, under the adversary system it is for the parties to identify the issues to be tried; and it is an important role of the court to then ascertain the facts in respect of those issues. It must be a very rare situation, indeed, in which it is truly impossible to make definitive findings of fact, despite difficulties in so doing. The court ought not, save in truly exceptional cases, to resort to disposing of a case, as here, on the basis of a failure to discharge an onus, simply because the presiding judicial officer has difficulty - even great difficulty - in discerning where the truth lies. It will be a remarkable case in which there are no objective indicia which point to where the probabilities lie. In some cases it may, as was pointed out in Bassett v Host, be necessary for the judicial officer to take steps to ensure that additional evidence obviously available is brought before the court to enable an informed decision to be made. 24. In the instant case it is clear that police officers attended the scene and may well have been able to supply helpful information. They may also have been able to indicate the names of other witnesses. We simply do not know. 25. More importantly there were clear inferences arising from the objective evidence which, prima facie, tended to indicate which version of events deposed to was the more likely. These do not seem to have been resorted to by the learned magistrate as an aid to resolving his difficulty. 26. The second point to be stressed is that an assessment of the evidence must always take as its commencement point the issues arising between the parties on the pleadings. 27. In the instant case the appearance entered by the respondent merely operated to put in issue the assertions of negligence advanced in the particulars of claim. The learned magistrate appears to have overlooked the true significance of the failure of the respondent either to plead contributory negligence on the part of the appellant or to make any counterclaim against him. 28. The state of the pleadings was such that, to succeed against the respondent, all that the appellant had to do was to establish some degree of negligence on the part of the former. The fact that the appellant also may have contributed to the accident by reason of his own negligence was, as matters stood before the learned magistrate, irrelevant, because it was never raised as an issue in the proceedings. 29. Irrespective of which party was correct as to the state of the traffic lights, it is beyond question that some significant degree of negligence attached to the respondent. He entered what is a major, notoriously busy, intersection at what was a relatively high speed (probably in excess of lawful limit) and his look out was plainly defective. There was nothing to prevent him observing the approach of the appellant's vehicle, had he been keeping a proper look out. On his own evidence he was, at the time, primarily focussing his attention on the Service Station ahead, to ensure that it 8 was still open. At no stage did he brake prior to impact. Even if the green light was still operating in his favour his conduct fell far short of that which is required by the law, of a defensive or protective driver (Antonow v Leane
(1990) 53 SASR 60, Tenhoopen v Nilsen (1989) 150 LSJS 16. See also my recent discussion of that topic in Howie v SA Police, 13 August 1993, unreported, judgment 4085, albeit in a somewhat different context.) 30. It follows that, on the issues joined between the parties, it was incumbent upon the learned magistrate to find for the appellant and enter judgment for the sum claimed. 31. I digress to make the comment that, on the facts as deposed to by the parties, it is stretching the bounds of credulity somewhat to accept that it is more probable than not that, prima facie, the appellant recklessly entered the intersection against a red light. This was not just a question of the possibility of him unwittingly driving through a red light. He told a detailed story of having stopped to wait for the light to change. He was found to be a good witness and there was no suggestion that he was deliberately lying. 32. There is no doubt that the appellant was, himself, guilty of failing to keep a proper look out as he moved off into the intersection, but that was beside the point on the pleadings. The evidence, as given, strongly suggested that the respondent, having initially seen a green light from a distance, then focussed his attention elsewhere and failed to note its change. 33. Whether that be so or not, this did not negate what would have been an inevitable finding of negligence on his part. On the state of the pleadings that was, technically, enough for the appellant to succeed. 34. On the hearing of the appeal and with the very proper consent of counsel for the appellant, I permitted the respondent to amend his appearance so as to plead contributory negligence against the appellant. That having been done counsel for the appellant was constrained to argue that, on the evidence, and given an inability to resolve the factual issue concerning the state of the traffic lights, it would be appropriate to infer that each party was equally responsible for the appellant's damage. 35. I agree with Mr Hasda that, bearing in mind what fell from Wells J in Stoeckel v Harpas (1971) 1 SASR 172 and drawing obvious inferences in the manner contemplated by the High Court in Holloway v McFeeters (1956) 194 CLR
470 at 480-1, the proposition now advanced by him is realistic and appropriate. 36. The appeal must be allowed and the judgment set aside. In lieu there will be judgment in favour of the appellant in the sum of $2,627.50 (being one-half of the damages claimed) together with costs on the applicable Magistrates Court scale. The respondent must also pay the appellant's costs to be taxed. Credit must be given for any sum already paid pursuant to the order originally made by the learned magistrate.