Goss v Demarchi No. DCCIV-03-1075

GOSS V DE MARCHI
[2004] SADC 17
Judge Kitchen
Civil

This is an application pursuant to Section 38(6) of the Magistrates Court Act 1991, to review the matter of a judgment entered in proceedings, heard in the Magistrates Court as a minor civil action, in which Mr James Frederick Goss (Mr Goss), the plaintiff in the proceedings, was awarded judgment in the sum of $525.00 against Mr Flavio De Marchi (Mr De Marchi), the defendant in the proceedings, for damage caused to Mr Goss’ car in an incident that occurred on 11^th November 2000. The incident happened on Elizabeth Way near its intersection with Main North Road.
The incident had been the subject of earlier proceedings (the first proceedings), also heard as a minor civil action, in which Mr Chris Firth (Mr Firth) sued Mr Goss for damage caused to Mr Firth’s motor car by a motor car being driven in reverse by Mr Goss. In those proceedings Mr Goss filed a defence in which he alleged Mr De Marchi had come to Mr Goss’ car while it was stationary at traffic lights on Elizabeth Way, and threatened him with a weapon; fearful for his life Mr Goss put his car into reverse gear, drove backwards to escape from Mr De Marchi and in doing so collided with Mr Firth’s car. Mr De Marchi was then joined as a second defendant in Mr Firth’s action. In the first proceedings the court awarded damages to Mr Firth, apportioning the liability for those damages as to 75% against Mr De Marchi and 25% against Mr Goss. In an application by Mr De Marchi for a review of those proceedings, this court affirmed the Magistrate’s judgment.
When the present proceedings came before the Magistrate he referred to the first proceedings and ruled:
“…that the issue of liability for the subject accident has been clearly determined by judicial determination and a further re-visit is estopped by that determination. On the basis of the determination (in the first proceedings) I rule in this action that the liability of the said accident on 11/11/00 be apportioned 75% negligence as to the defendant and 25% negligence as to the plaintiff. I don’t consider Section 39 of the Magistrates Courts Act has any application in respect to the current matter before the court. I will proceed to assess the issue of the plaintiff’s damages based on that determination of liability”.
Section 39 of the Magistrates Courts Act provides:
“39. A determination of an issue in a minor civil action does not prevent the parties from again litigating the same issue in different proceedings based on a different claim.”
In Jackson v Goldsmith (1950) 81 CLR 446, White sued Jackson in the Supreme Court for damages for personal injuries he suffered when a motor cycle being driven by Jackson, and on which White was travelling as a passenger, collided with a motor car being driven by Goldsmith. Jackson issued third party proceedings against Goldsmith seeking an indemnity, or contribution, from Goldsmith in respect of any sum which Jackson may be found liable to pay for White’s injuries, on the grounds that Goldsmith was a tortfeasor liable to White for the damage suffered by White. In earlier proceedings in the District Court, Goldsmith had sued Jackson for negligently causing damage to his motor car in the same collision which was the subject of White’s action. In the proceedings in the District Court the court had found that Jackson was negligent and Goldsmith was not guilty of contributory negligence. Relying on that determination, Goldsmith pleaded that Jackson was estopped from alleging negligence on the part of Goldsmith, and that in effect the third party proceedings issued by Jackson should be struck out. That plea was accepted in the Court of Appeal. Jackson’s appeal to the High Court was allowed by a majority of the court. Latham CJ, one of the judges in the majority, wrote at page 456:
“In the third party proceedings in the Supreme Court the question is whether Goldsmith is liable in respect of the injury done to White by reason of a breach of duty to take care which he owed to White.
The proceedings in the District Court did not determine whether there was any breach by Goldsmith of a duty which he owed to White. … Therefore the decision in the District Court does not estop Jackson from alleging that Goldsmith was guilty of a breach of duty which he owed to White.”
In the first proceedings in which Mr Goss and Mr De Marchi were defendants at the suit of Mr Firth, the issue was whether the defendants were in breach of a duty to Mr Firth to take reasonable care to not cause him injury or damage. It was held that both of them were in breach of their duty, and were liable to Mr Firth in the proportions fixed by the court. In the present case the issue is whether Mr De Marchi was in breach of a duty to Mr Goss to take reasonable care not to cause him injury or damage, and if in breach whether Mr Goss failed to take reasonable care for his own safety. In my view the issue in these present proceedings is different from the issue determined in the first proceedings; but even if I am in error in that view, still the claim in the present proceedings is different from that in the first proceedings, in that no claim was made by Mr Goss against any other party in those proceedings for damage done to his car.
Accordingly, in my view, Mr De Marchi was not estopped by the judgment in, or the determination of any issue in, the first proceedings from contesting his liability for Mr Goss’ claim in these proceedings. In my opinion the Magistrate was in error in ruling otherwise, and I decided to hear evidence on the issue of liability.
As to the Magistrate’s findings concerning the quantum of the damage caused to Mr Goss’ car in the collision, there is nothing in my review of the proceedings, or the submissions of Mr De Marchi, or the evidence I heard on that issue which leads me to reach a different finding from that arrived at by the Magistrate; my reasons for that conclusion are contained in these reasons.
Liability
On the day of, and shortly before, the incident the subject of these proceedings, Mr De Marchi, his wife Ms Jenny Henderson De Marchi and her son Jack, by a former relationship with Mr Goss went by motor car to the Elizabeth police station. The purpose of that visit was to provide Mr Goss contact with his son Jack as part of an arrangement ordered by the Family Court; Exhibit P4.
I infer that since about 1993 there have been ongoing disputes between Mr Goss and Ms Henderson De Marchi concerning Mr Goss’ access to, or contact with, Jack.
There were different versions given in evidence by Mr Goss and Ms Henderson De Marchi (who was called by Mr De Marchi) of what occurred in the police station, but it is common ground that Jack retreated into Mr De Marchi’s car in the parking area of the police station. At that time Jack was about seven years old; there were two other children in the car aged about twelve years and three years. Ms Henderson De Marchi got into the car, and Mr De Marchi drove out onto Frobisher Road to its junction with Elizabeth Way where he turned right to travel toward the intersection at Main North Road which was controlled by traffic lights.
Mr Goss said he was very disappointed that access with his son had not occurred, and after Mr De Marchi drove away he got into his car and also drove via Frobisher Road onto Elizabeth Way and headed toward the intersection at Main North Road. He said he passed Mr De Marchi’s car, which was travelling slowly, and arrived first at the intersection, where he stopped in one of the lanes for traffic to turn right, and then Mr De Marchi’s vehicle came and stopped in a lane to the left of Mr Goss.
Mr Goss’ evidence is that Mr De Marchi got out of his car, came to Mr Goss’ open driver’s side window, carrying in his hand a bale or meat hook, and “said, ‘I’m going to kill you you fucking cunt’ and began thrashing wildly at my head and throat region”. Mr Goss related that, fearing he would be harmed, he leaned away from the open window toward the middle of his car, pushed the gear selector into reverse and accelerated backwards; he said Mr De Marchi ran alongside the car slashing at and abusing him,
“… until I did accelerate away and then leave him, upon which there was a huge impact, as a gentleman later it will be found Mr Firth had pulled up behind, unbeknown to me as I pulled up before there was nothing in my vision. He had driven along in the meantime. There was a huge collision.”
He described that Mr De Marchi “dropped to his knees and laughed his head off … then sprinted back to his vehicle and got in and drove off through a red light…”
Mr Goss said he did not know, but he estimated his car travelled in reverse about six car lengths at a speed up to twenty-five to thirty kilometres an hour before colliding with Mr Firth’s car which he had not seen because he was leaning down to his left away from the open driver’s window.
After the collision Mr Goss and Mr Firth drove their respective vehicles to the Elizabeth Police Station – Mr Goss said it was about one hundred metres from the scene of the collision – and reported the accident.
Mr De Marchi’s evidence is that when Ms Henderson De Marchi got into his car after the giving and taking of access to Jack had failed, Mr Goss came to Mr De Marchi’s car and abused him; Mr De Marchi described that he (Mr De Marchi) drove away onto Frobisher Road, and then halted at the junction with Elizabeth Way. He said that by the time he got to the junction:
“A.… (Mr Goss) was in his car, started it up, and as I went to turn right – because Mr Goss was angry that Jack did not go on access – I went to turn right and I was in the inside lane to turn right and Mr Goss came flying up to sideswipe me on my rear back, on the right hand side, my right hand side, driver’s side, and as Mr Goss –
Q      You say that his car collided with yours.
A      He sideswiped me.
Q      Did his car strike yours.
ANo he didn’t collect. I had to veer off to the left, push myself out to the left-hand side lane.
QWhich left-hand side lane, on which road.
AOn Frobisher Road – on Elizabeth Way.
QThis is in the course of your turn, is it.
AAs I am turning yes.
QAs you were going to turn to the right you say that Mr Goss’ car came up on your left-hand side.
AI am turning right. He’s on my driver’s side.
QOn your driver’s side.
AYes. I am turning that way and he’s come –
QYou then headed to the left-hand side of Elizabeth Way.
AOf Elizabeth Way, heading towards the –
QMr Goss is on your right-hand side.
AYes.”
Mr De Marchi related that he drove to the intersection of Elizabeth Way and Main North Road where he stopped at the white line in a lane for through traffic; he said: (T.29-30)
"A(Mr Goss) pulled up alongside of me. I was stationary. There was no car in front of Mr Goss. He pulled up on the side of me. I got out of my car to walk in front – on the front of Mr Goss’ car, around the front of Mr Goss’ car, no weapon, no bale hook, no nothing, to have a chat with him and say “What are you trying to do trying to sideswipe me?”. Mr Goss panicked and in frustration, put his car in reverse and hit the rear end of the front of Mr Firth’s car, which Mr Goss reversed back approximately six metres – eight metres maximum before impact with Mr Firth’s car. I did not have a bale hook in my hand whatsoever, slashing –
QYou say he reversed back how far.
AAbout six to eight metres.
QSix to eight metres.
AMaximum on impact – before impact with Mr Firth’s car.
QYes.
AI had no weapon.
QWhen you got out of your car and walked around the front of Mr Goss’ car, which was parked on your right hand side
AOn my right hand side.
QWhere did you go
ANext to the door where the windscreen is.
QThat is the driver’s door.
ADriver’s door, but I wasn’t level with the driver’s door, just where the windscreen – the start of the windscreen, so I wasn’t actually face-to-face with the window – the door window and I was there for a split second, two seconds if that.”
Mr De Marchi said that he went to Mr Goss’ driver’s side window to have a chat with him about trying to sideswipe Mr De Marchi, but he did not say a word to Mr Goss. Mr De Marchi said Mr Goss did not lean to his left inside the car but was seated in the car “normally” when he reversed it into collision with Mr Firth’s vehicle. Mr De Marchi said that when that happened he returned to his own car, waited for the green light and then drove home.
In cross-examination Mr De Marchi said that he had a memory of this incident in minute detail. He identified Exhibit P2 to be an application he made for a restraining order against Mr Goss; it is dated 17^th May 2001 and is supported by an affidavit sworn by Mr De Marchi. In that affidavit he attested that the vehicle Mr Goss drove on 11^th November 2000 was a Dodge registration ULK 332. In his evidence he accepted that was not the car Mr Goss had been driving, explaining “I got my cars mixed up”.
In cross-examination of Mr De Marchi, by Mr Goss, there was this exchange:
"Q“Would you also then state that had you not alighted from your vehicle at all, that this incident wouldn’t have occurred.
AThis incident wouldn’t have occurred if you didn’t come to my car at the police station.
QExcuse me, you’re not answering my question.
AYes I am.
QNo, you’re not. If you had not alighted from your vehicle at that set of traffic lights, then the rest of the incident, as in my backing away because I’m so scared of you, slammed into a car would not have occurred; is that correct.
AThat’s right.
QThat’s dead right. Thank you very much.
MR GOSS:        Your Honour, can I point out that Mr De Marchi also believes that if he didn’t get out of his vehicle –
HIS HONOUR: Don’t address me. Ask questions.
XXN
QIf you didn’t get out of your vehicle nothing would have happened.
ACorrect. I just answered that.
QExactly, you said ‘correct’.
AI –
QTherefore you were at fault for this accident –
AYes –
QHad you not got out of your vehicle none of this would have happened.
AIf you had you 2 minutes at the Elizabeth Police Station none of the incident would have happened, Mr Goss, you know.
HIS HONOUR: Gentlemen, it seems to me that you have reached an impasse.
MR GOSS:        My –
A      The 2 minute, if you waited, none of this would have happened.
MR GOSS:        My last bit, your Honour, is regardless of whatever Mr De Marchi likes to put across to this court of Mr De Marchi wants to put across to this court –
HIS HONOUR:           Ask a question.
XXN
QIt gets to the point where had you not alighted from the vehicle, none of this would have happened, therefore I believe you were 100% responsible for this accident.
A      Incorrect.
QThat’s my point: that had you not alighted from your vehicle none of this would have happened because we wouldn’t have gone through years of court cases over this incident had it not been for your behaviour.
AIf you waived (sic) your time like the Family Court says, none of this would have happened, Mr Goss.”
As to the topic of Mr Goss waiting “like the Family Court says”, there is a clause in the Family Court order (Exhibit P4) requiring one or other of Mr Goss or Ms Henderson De Marchi to wait at the police station for two minutes in the circumstances specified in the order.
Ms Henderson De Marchi’s evidence is that when her son Jack retreated into Mr De Marchi’s car in the carpark of the Elizabeth police station, she tried to persuade him to get out of the car to go with Mr Goss, but he would not. She then went back into the police station where she spoke to a police officer – Mr Goss was present and she said he was verbally abusive to her – and then returned to and got into the car. She described that Mr Goss came to the car and swore at Mr De Marchi; Mr De Marchi then drove off and as he was turning to go onto Elizabeth Way Mr Goss came alongside in his car and almost “sideswiped us”. She said Mr De Marchi stopped his car, got out “went around to Mr Goss’ driving window … (as he) approached Mr Goss’ driver’s side, Mr Goss just turned and looked at him and threw his car in reverse and backed into a little red car”. Ms Henderson De Marchi said that Mr De Marchi did not have anything in his hand when he got out of the car, she did not hear him say anything to Mr Goss and he did not “run alongside” Mr Goss’ car, which she said reversed a distance of about one car’s length before colliding with the red car; she said that Mr Goss “leant over to the passenger seat and the car went backwards”.
The order of the Family Court (Exhibit P4) was made on 31^st October 2000; it provided that Ms Henderson De Marchi was to give Mr Goss contact with Jack commencing on 4^th November 2000, and the “contact changeover” was to be at the Elizabeth Police Station. Concerning that order Mr Henderson De Marchi said it was made “because of bitterness between all of us that has been going on for years”.
Mr Firth was called by Mr De Marchi to give evidence at the hearing before the Magistrate, but the Magistrate having ruled that liability for the damage caused to Mr Goss’ car had been determined in the first proceedings, Mr Firth gave no evidence as to what he saw of events before or at the time Mr Goss reversed his vehicle into collision with Mr Firth’s vehicle. Mr Goss said he did not call Mr Firth at the hearing before me because Mr Firth had given evidence of the events on a number of earlier occasions, that he (Mr Goss) did not wish to bother him again and in his observation Mr Firth’s evidence “had slowly relented over a period of time”. Mr De Marchi said that he did not wish to have before me any evidence by Mr Firth because “I just find him an unreliable witness”.
The Magistrate accepted Mr Goss’ evidence as to the nature and extent of the damage caused to his car, to remedy which Mr Goss said he purchased from City Dismantlers the used parts listed in a document produced to the Magistrate. Mr Goss claimed also for a GST component attributable to the purchase price ($620) of the parts, and an amount for his own labour to carry out the remedial work. The Magistrate disallowed the claim for GST and labour assessing Mr Goss’ loss to be $620.
In relation to the quantum of Mr Goss’ claim, Mr De Marchi called Mr Karl Teigesser, a mechanic and an employee of City Dismantlers, to give evidence in the Magistrates Court. Mr Teigesser had not inspected Mr Goss’ vehicle, but said it was possible that such a vehicle reversing at twenty five to thirty kilometres an hour into collision with Mr Firth’s car (photographs of the damage to which were shown to Mr Teigesser) could cause damage to the extent Mr Goss described occurred to his own car.
Mr Goss was cross-examined at some length by Mr De Marchi before me concerning the damage to Mr Goss’ car; in my assessment of him Mr Goss was unshaken and I accept his evidence that the distance he reversed and the speed he attained before colliding with Mr Firth’s car was, more probably than not, of the order of that to which he testified.
Ms Henderson De Marchi’s evidence that Mr Goss abused Mr De Marchi when the latter was in his car, parked in the grounds of the Elizabeth police station, was not challenged by Mr Goss. That was followed by Mr Goss driving his car in such proximity to Mr De Marchi’s vehicle that the latter perceived Mr Goss had tried to side-swipe Mr De Marchi’s vehicle. It was immediately after those two incidents that Mr De Marchi got out of his vehicle and approached Mr Goss’ car on foot. I do not accept Mr De Marchi’s evidence (in cross-examination) that he did not see that as an act of hostility toward Mr Goss. Mr De Marchi’s description that “Mr Goss panicked” and reversed away from him when he had reached the driver’s side of Mr Goss’ vehicle, next to the windscreen, is wholly consistent with Mr De Marchi’s approach being angry and hostile. Ms Henderson De Marchi said she heard nothing said by Mr De Marchi; however it is significant, I find, that she also said she was reaching into the rear passenger area of the car to console Jack who was crying. That being the case I am not prepared to place much reliance on her evidence of what she said she saw and heard of the incident after Mr De Marchi stopped his car at the intersection.

Mr Goss’ evidence as to why it was he reversed to collide with Mr Firth’s car was given in a matter-of-fact, measured way; his action in reversing in the manner he said he did is consistent with that of a person reacting to a perceived threat to him. Mr Goss impressed me as a witness who was endeavouring to be substantially accurate in the evidence he gave.
I prefer the evidence of Mr Goss concerning the events which occurred after Mr De Marchi stopped his vehicle on Elizabeth Way and went on foot to Mr Goss’ car, wherever it conflicts with that of Mr De Marchi.
Conclusion
I find that Mr De Marchi went to Mr Goss’ car in a hostile and threatening manner carrying an implement of the kind described by Mr Goss which he used toward Mr Goss in the way Mr Goss related. It was reasonably foreseeable Mr Goss would act to avoid the potential risk of harm to his person, threatened by Mr De Marchi, by driving away, if necessary in reverse, to distance himself from Mr De Marchi and by that manoeuvre risk injury, or damage to his property.
I also find that Mr Goss had displayed anger toward Mr De Marchi in the car park of the police station and driven his car on Elizabeth Way, to pass Mr De Marchi’s car, in a manner from which I infer Mr Goss was angry or agitated, or both, at that time and at the time Mr De Marchi came on foot to Mr Goss’ car. Mr Goss’ action in accelerating his car in reverse with “full power to the ground …and it leapt … backwards” without any regard for vehicles to his rear amounted to a failure on his part to take reasonable care for his own safety and contributed to the damage sustained by his car; it was a potentially dangerous manoeuvre particularly when continued over the distance and at the speed he estimated.
Responsibility for Mr Goss’ loss must be apportioned between the parties. In my opinion Mr De Marchi must bear 75% of the responsibility.
I affirm the judgment of the Magistrate awarding Mr Goss a total sum of $525.00 against Mr De Marchi.

[2004] SADC 17

28 January 2004