Goodwin v Ron Heath Tyre Services (SA) Pty Ltd No. Scgrg-97-1507 Judgment No. S6508

[1997] SASC 6508

GOODWIN v RON HEATH TYRE SERICES (SA) PTY LTD

Magistrates Appeal
Olsson J

The appellant, who was the defendant in the court below, appeals against a judgment entered against him in the sum of $10,428.94 in the Civil Division of the Magistrates Court on 14 October 1997 by a stipendiary magistrate.

The judgment was entered in proceedings in which the respondent (“Heath”) sued the appellant (“Goodwin”) for damages, being the cost of repairs to a Lexus motor vehicle (“the Lexus”) driven by him.  Those repairs related to damage sustained in a collision which occurred on 3 June 1995 between the Lexus and a Sigma motor vehicle (“the Sigma”) driven by Goodwin.  The learned magistrate held that the impact was solely the consequence of Goodwin’s negligent manner of driving.  He dismissed the appellant’s counter-claim for $2307 repairs to the vehicle driven by the latter.

The Magistrates Court file indicates that the original claim filed constituted a direct claim for damages in negligence made by Heath against Goodwin.  On 9 April 1997 this was amended by leave, to plead an additional paragraph 10A, which I take to be intended as cause of action in addition and as alternative to the original claim in negligence.  That paragraph reads:

“10A.        The plaintiff seeks to recover contribution from the defendant pursuant to sections 25(1)(G) and 26 of the Wrongs Act 1936 for the loss and damage such that the plaintiff is completely indemnified and repeats the allegations in paragraph 7 of the particulars of claim”.

Had paragraph 10A been intended to stand as the sole cause of action it would have been unnecessary to “[repeat] the allegations in paragraph 7 of the particulars of claim”, these being particulars of negligence supporting the original claim in negligence.

The basic outline facts before the learned magistrate were not in dispute, although those bearing on the detailed events immediately prior to and at collision were in contention.

The Lexus was owned by a company called Mattins Holdings Pty Ltd (“Mattins”).  It had been delivered by Mattins to Heath to fit new tyres and have the wheels aligned.  The witness Hunt, who was an employee of Heath, performed some work on the vehicle and then took it for a test drive.

At about 11.00 am on 3 June 1995 Hunt drove the vehicle in a westerly direction along Elizabeth Street, Eastwood.

Elizabeth Street joins Main Street at what, for all practical purposes, is a “Y” junction.  At the junction, as one travels west along Elizabeth Street, Main Street comes in on its left, the shaft of the “Y” continuing, as Main Street, to the west.  Both streets appear to be relatively narrow, secondary carriage ways.  According to the appellant Main Street is 22 feet 9 inches from kerb to kerb and Elizabeth Street is 22 feet exactly.  There is no “Stop” or “Give Way” sign at the junction.

It is clear that, as the Lexus came to the junction, there were vehicles parked on the north side of Elizabeth Street.  As the locus photographs readily reveal, that did not leave a great deal of space for a third vehicle to travel between them and the Lexus, although it was not suggested that it was impossible to do so.  It was simply that the space available was fairly “tight”.

At the same time Goodwin was driving his Sigma in a south-easterly direction along Main Street towards the junction and away from the point at which it joined Glen Osmond Road.

It was the intention of Hunt to turn the Lexus to his left into Main Street, at the junction.  As it transpired Goodwin proposed to turn to his left at the junction and drive up Elizabeth Street in the direction from which the Lexus had come.

What occurred when the two vehicles approached the junction was hotly disputed by the drivers, although there is no question but that some portion of the front of the Sigma impacted with the offside right front corner of the Lexus.  This is clearly revealed in photographs tendered at trial.

Hunt testified that he was familiar with the area, which was part of his normal test drive route.  He said that, as he came up to the junction, he came to a halt, on his correct side of Elizabeth Street, a little short of a shallow spoon drain which runs across the mouth of it, along Main Street.

He insisted that he came to a halt because, on looking to his right, he observed the approach of the Sigma at the speed which he estimated to be 50‑55 kph.  Because he did not ever see any turn indicator operating on the Sigma, he assumed that it proposed to continue on straight along Main Street, past his location.

Hunt told the magistrate that, as he turned to look to his left, he heard screech marks.  The Sigma collided with the Lexus, pushed it sideways, slightly to its left, and triggered off its driver’s air bag.

After the impact no brake marks were recorded as being left behind the Lexus.  However, the path of the Sigma was clearly delineated by a set of pronounced skid marks which commenced in Main Street and curved into Elizabeth Street up to where the Lexus came to rest.  There is no evidence as to the exact length of those skid marks, but, from photographs taken shortly after the collision, they proceeded over a distance of some metres.  It was put to Goodwin that they were 30 metres long and he did not dissent from that proposition.

The evidence of Goodwin was substantially at odds with that of Hunt.  He testified that, some distance back from the junction, he had been travelling at 55 kph.  He intended to turn to his left into Elizabeth Street.  Accordingly, as he approached it, he activated his left turn indicator and removed his foot from the accelerator.  He said that he did not initially brake, but simply “coasted down” to the junction at what he described as “a fair speed”.  He estimated his speed at 34 kph on entering into the junction; and claimed to have been able, at that speed, to stop in 4 feet, with heavy braking.

On the appellant’s narrative, as he went to turn into Elizabeth Street he saw “through a car that was parked there on ... [his] ... left” “this car” [ie the Lexus] “coming at me at about 60 miles [sic] an hour”.  He went on to say “Instantly I had to make a decision because it was coming at me at such an incredible speed”.

He told the learned magistrate that he instantly hit his brakes, his tyres slid on the road surface and had no control of his vehicle.  He described the scenario in these terms -

“Well, it slid across the road and I thought I’m going to hit the stobie pole and this Lexus made a dive to his left because he was over on the other side of the road when I come around the corner.  He obviously was going to go to his left or whatever.  He was on my side of the road and he made a dive to his left and he wacked [sic] across the front of the Sigma.”

He contended that there were 10 to 12 foot black skid marks under the Lexus, which were not revealed by photographs taken by some nearby residents immediately after the accident.  He claimed that he was unable to photograph them the next day because the road surface was wet.  Hunt denied that any skid marks were left by the Lexus due to the braking of it.

As is clearly depicted in photographs A and B the skid marks on the road surface visible in them change direction at one point, with about a 45° angle to the right.  Both drivers seem to have agreed that this was about the point of impact.  If that is correct, then it verifies that the Lexus was on its correct side of the road and not on its wrong side of the road, as claimed by Goodwin.  Bearing in mind the markings on the road, the position of the Lexus after impact (as depicted in the photographs),  the very short distance moved by it from the point of impact, and the fact that the Lexus was struck on its offside front corner, commonsense indicates that Hunt’s view of what occurred is more likely than that of Goodwin and that the Lexus manifestly could not have been travelling at high speed immediately prior to impact.  On the contrary the objective signs in the photographs are entirely consistent with the Lexus having been stationary (or near stationary) at impact.  The damage to it is not what one would have expected from two vehicles moving at speed and colliding more less head on.

On the foregoing basis of evidence, even leaving aside questions of assessment of relative credibility in the courtroom, it is small wonder that the learned magistrate rejected Goodwin’s narrative and preferred that of Hunt.

It was his conclusion that -

·....... Goodwin’s vehicle could not have been virtually stationary at impact.  The skid marks on the road surface contra indicated his evidence concerning the speed of his vehicle.

·....... The skid marks are inconsistent with him seeing the approach of the Lexus as he said he did.

·....... The skid marks indicate a hard application of brakes to a vehicle travelling at a considerable speed.

·....... The effect of the impact on the Lexus in stopping it “dead” is quite inconsistent with an impact on a vehicle travelling at a substantial speed.  There was no acceptable evidence of any brake marks left of the Lexus.

The learned magistrate concluded that the Lexus was stationary on its correct side of Elizabeth Street at the time of the incident.  He considered that the sole reason for the accident was that Goodwin attempted to enter Elizabeth Street without maintaining an adequate look-out and at a speed which was excessive in the circumstances.  He realised, too late, that he had little room in which to manoeuvre, due to the parked cars, and lost control.

True it is that the learned magistrate made some ex cathedra comments concerning Goodwin’s age and likely reaction time and that there was no acceptable evidence concerning air bag deployment triggers, but it seems to me that these did not bear heavily on his ultimate assessment.

The plain fact of the matter is that, not only was Goodwin’s narrative patently and inherently improbable, but also the objective physical evidence pointed compellingly in favour of Hunt’s version.

I think that the learned magistrate was unerringly accurate when he concluded that Goodwin has, since the accident, rationalised and reconstructed the events in his own mind in a manner which is in substantial discord with the actual facts.

I have no hesitation in concluding that the learned magistrate was correct in assessing that the sole responsibility for the accident rested with Goodwin.

However, that was but one issue arising before the learned magistrate.

Prior to trial Goodwin had made application for summary judgment in his favour on the basis that the issue was res judicata and that an estoppel arose against the appellant by virtue of the outcome of certain earlier litigation in action 22883 of 1995 in the Magistrate’s Court, which was the subject of a judgment of Debelle J on appeal (see judgment S5996, dated 15 January 1997).

In that action Mattins purported to sue Goodwin for the cost of repairs effected to the Lexus as a result of the collision on 3 June 1995.  Goodwin counter-claimed against Mattins and joined Heath as a third party.

However, it emerged that, at the time when that action was instituted, Heath (or, more precisely, its insurer) had paid the full cost of the damage caused to the Lexus to the exoneration of Mattins.      In such circumstances Debelle J held that, because “damage is the gist” of an action in negligence and Mattins had (in effect) recovered the cost of repairing the damage from a person said to have been a joint tort feaser, it had no residual cause of action against Goodwin.  He entered judgment in favour of Goodwin against Mattins.  He made no order on the counter-claim “without prejudice to the defendant’s right to counter-claim in any fresh action”.  He did so because of the fact that any liability vis a vis Heath had not been and could not be determined.  The Mattins claim was thus dismissed on the ground that it disclosed no cause of action.  The merits of any issues of negligence vis a vis Goodwin were thus not decided.

On the hearing of this appeal Mr Hall, of counsel for Goodwin, contended that res judicata, or at least an estoppel of the type adverted to in Port of Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3, constituted a bar to the claim by Heath; and that judgment should have gone in favour of Goodwin on that ground alone.

Such an argument founders on either one of two bases.

First, it is plain from the reasoning of the Full Court in Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572 (“Rogers”) that res judicata does not arise other than in situations where a judgment relied upon to establish such a plea is the outcome of a determination of an issue of fact or law, on the merits.  As already emerges, that did not occur in the instant scenario.

Second, in the interlocutory stages of the case at bar, Goodwin issued an application for summary judgment on the express basis that the issues sought to be ventilated in the Heath action were res judicata, following the judgment entered in the Mattins action, pursuant to the decision of Debelle J.

This application was argued on the merits before Mr A.J. Cannon SSM who, for reasons expressed by him ex tempore on 19 March 1997, dismissed it.  Thus the issue now sought to be re-debated was specifically decided against Goodwin at that time and no appeal was sought to be prosecuted in relation to it.  On the reasoning discussed in Rogers, it is not open to Goodwin to seek to re-litigate the point at this time.  The only valid res judicata plea which arises in the context of these pleadings is against Goodwin.

There is, accordingly, no merit in this aspect of the appeal and I reject it.

Mr Hall then sought to promote two successive additional arguments.

First, he advanced the somewhat startling proposition that, because the Heath claim arose, by reason of subrogation through Mattins, and Mattins liability was vicarious in relation to the employee driver Hunt, no direct action in negligence could be prosecuted by Heath against Goodwin.

I must confess that I found great difficulty in understanding the conceptual basis on which Mr Hall propounded his proposition.  He seemed to suggest that what was in issue was a question of foreseeability.  He declaimed “The area of foreseeability should not go beyond the immediate parties to the incident itself”.  He appeared also to argue that the facts that Hunt was an employee of Heath and was exonerated from negligence and the Lexus was owned by Mattins somehow combined to debar Heath from claiming against Goodwin in negligence.

To the extent that I have any understanding of the argument I consider it to be untenable.

What we have here is the following scenario:-

1. Mattins owned the Lexus and entrusted it to Heath for the purpose of work being performed on it.

1. Heath’s employee driver was under a legal duty to return to Lexus to Mattins in the condition in which it was received, as modified by the work contracted for.

1. Heath was vicariously responsible for the acts of its employees.  In the instant case it was held to be under no liability for anything done by Hunt, because Hunt was exonerated from negligence.

1. Heath (through its insurer) made good the damage to the Lexus, presumably to satisfy its legal obligations to Mattins as bailee.

1. By so doing it became subrogated to any right of recovery which Mattins would have had against Goodwin by virtue of his negligence in causing damage to the Lexus.

It is at once apparent that any vicarious liability of Heath for the actions of Hunt is quite irrelevant for present purposes.  Heath’s right of action against Goodwin stems from the principle of subrogation, i.e. by virtue of the principle of subrogation Heath is entitled to stand in the place of Mattins and prosecute any claim which the latter could have prosecuted had it not been paid out.  But for the assumption of financial responsibility by Heath, Mattins was entitled to recover the cost of repairs to its vehicle occasioned by Goodwin’s negligence.

It follows that there is no bar to the prosecution by Heath of a direct claim in negligence against Goodwin, in accordance with the primary claim in the present action.

Other, more complex, considerations may arise in relation to Mr Hall’s second strand of argument based on what, he says, is the proper construction of section 25(1)(c) of the Wrongs Act 1936 and the line of reasoning adopted in Thompson v Henderson & Partners (1990) 58 SASR 548 (“Thompson”) i.e. that contribution cannot be claimed between a party akin to a principal, on the one hand, and a person acting as agent of that party, on the other, as they are not joint tortfeasors.

The most obvious initial response to such an argument is that Thompson directed its attention to a true situation of principal and agent in the strict legal sense, a situation quite different from the instant case.

However, regardless of whether it can or cannot be said that the parties to these proceedings are tortfeasors within the meaning of section 25 of the Wrongs Act 1936, the question of the validity of a claim under the amended paragraph 10A of the statement of claim becomes entirely academic.  That interesting issue is for another day.  A conclusion that Heath had a direct cause of action in negligence against Goodwin is an end to the matter.  Heath’s primary claim succeeds.

No viable basis for impeaching the judgment appealed against has been demonstrated.  The appeal must be dismissed.