Haiu v Rodgers - [2015] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HAIU v RODGERS
[2015] SADC 86
Judgment of His Honour Judge Tilmouth
2 June 2015
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Judgment of the Magistrate rescinded in part. In lieu thereof there will be judgment in favour of the appellant Mr Haiu for 20 per cent of his property damage of $1,234.20, namely $246.84, with further adjustments for costs and court fees.
Magistrates Court Act 1991 (SA) s 38(1)(f), referred to.

HAIU v RODGERS
[2015] SADC 86

This is an application for the review of a decision of a Magistrate sitting in the Minor Civil jurisdiction of the Adelaide Magistrates Court, by which the Magistrate dismissed a claim by the appellant for property damage sustained in a motor vehicle accident.
The subject accident took place at approximately 7.30 am on Friday 1 August 2014 in Hindmarsh Square, in the CBD of Adelaide at its South-Westerly junction with Pirie Street. Mr Haiu is the owner of a taxi driven by Mr Berhane at the time. The defendant and respondent to this appeal, Ms Rodgers, was the driver of the second vehicle involved.
There is no doubting that both vehicles were travelling in a westerly direction along Pirie Street, had crossed Pulteney Street and were in the proximity of the intersection of Pirie Street and the Hindmarsh Square service road running along the South-Western flank of the Square. The Nova building is situated at the very corner of the intersection and is abutted to the north by the Mantra Hotel, or serviced apartments. Ms Rodgers was in front, she had pulled to a halt and engaged her indicator to turn right into the service road at the intersection. Mr Berhane had pulled up stationary behind her in the taxi. Photographs of the intersection depict one lane for western bound traffic is available in a straight line, with parallel parking available to the left.
The evidence taken by the Magistrate from Mr Berhane, described the wheels of the blue Corolla in front of him driven by Ms Rodgers, as pointing ‘straight ahead’. He commenced to pass to the left as he was heading to King William Street. His passenger was destined for the Telstra building in Pirie Street at its intersection with Stock Exchange Place. Mr Berhane described checking his rear view mirror. As he did so, he saw the Corolla was ‘starting driving to the park … to turn right’ and as he passed he ‘heard a bang on the car’. He did not know how she ‘moved into him’. He described the incident in this detail:
I came the left side to overtake her. I already overtake her because my taxi is hitting the back of the door, the right back of the door. I passed her. She moved because if she doesn’t move, if because if I close to her maybe I … take her mirror, the left mirror. I think she moving like this (demonstrates) maybe, I don’t know. I pass her, I heard the bang, when I heard she is driving through to the park …
Ms Rodgers gave evidence that she was in an employer’s car delivering hot food that morning to the Nova building. She was stationary waiting to turn right with her indicator on. She was not watching vehicles behind as she was focussed on traffic in front, as she was waiting to turn right. She told the Magistrate:
I wasn’t moving which is something that I asked the gentleman. I said ‘How do you figure it is my fault when I was not moving’. He said ‘You moved, you moved, your fault’.
In ex tempore reasons for judgment delivered immediately after the evidence concluded, in dismissing the claim against Ms Rodgers, his honour reasoned as follows:
The truth of the matter is that Mr Berhane did not see the accident happen. He felt a collision between the right-hand of his taxi as he passed Ms Rogers. He suggests that as if he was travelling close to her, then there would have been a collision between his mirror and the left-hand of her car before the impact happened with his rear guard. This is a consideration.
However, if, as Ms Rodgers says, he had to move to the right so as to enter the single lane on Pirie street for traffic travelling in a westerly direction, then it is possible the rear right-hand of his car moved enough as he moved forward to touch the front left-hand of Ms Rodgers’ car.
Ms Rodgers motor car was in drive. If she took her foot off the brakes her car would have moved forward slightly. However, she was intending to turn right so it is likely that her front wheels were turned slightly to the right. As she moved forward in all likelihood her car would have moved away from the taxi.
Ms Rogers is certain she was stationary. I accept her evidence. I think it more than likely that the taxi misjudged the distance between the front of Ms Rodgers car and the taxi and inconsequence made slight contact with it. I cannot be certain this is what happened but this appears to be the more likely scenario. In the circumstances the plaintiff’s claim is dismissed.
It is perfectly correct that Ms Rodgers did say that Mr Berhane’s vehicle had to move to his right into the West-bound lane in Pirie Street, but that cannot be correct. First, had he done so he would have moved across oncoming traffic, and second if any contact between the vehicles had occurred, damage would necessarily be to the left or passenger side of his car and to the right or the driver’s side of hers. As we shall see, the damage was to the reverse sides of the respective vehicles. A second consideration rising from these reasons is that they contain no reference to photographs taken of the actual damage caused to both vehicles. The relevance of those photographs will be considered shortly.
Towards the conclusion of the hearing before the Magistrate, Mr Berhane indicated he had a witness, the passenger he was taking to Telstra. He told his Honour ‘he is a witness if you want him’. The Magistrate asked ‘where is he’. Unfortunately he had not been brought to court for the hearing. His Honour pointed out that the notice of hearing indicated that the parties should bring witnesses to court for the hearing. He simply ruled ‘I can’t take that into account’.
It is correct to observe that the notice of hearing advises ‘If you wish to win the case, you must attend with all available witnesses …’. This advice is provided for in Form 23H of the Magistrates Court Civil Forms. There is an initial problem of interpretation, in that ‘if you wish to win’, rather implies that if a party, who is usually unrepresented, forms the view that they can succeed without bringing witnesses, they might not bother to do so. The form might be better drafted in unqualified terms. Second, despite the advice given on the Form, it does not necessarily follow that the prospect of calling a witness must be automatically dismissed out of hand if the witness is not immediately available.
Magistrates placed in this situation ought first make inquiry as to why the witness was not present. In cases where a witness is indisposed or unavailable due to no fault of the calling party, that would ordinarily justify an adjournment despite the busy lists Magistrates are duly called upon to abjudicate. So too in the case of a witness refusing to comply with a subpoena. After all, the Magistrates Court remained charged with the duty to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: Magistrates Court Act 1991 (SA), s 38(1)(f). In this case the reasons for failing to bring the witness is not apparent as the inquiry was not made.
When the matter was first called on in the District Court on 12 May 2015, a statement of the passenger, Mr Sheppard, was submitted on behalf of Mr Haiu. It might be added that the District Court notification of hearing says nothing about witnesses. It merely advises ‘please bring to court all documentation on which you rely …’. The declaration was dated 20 April 2015, but it had not been served on Ms Rodgers until minutes beforehand, so the application was adjourned to enable her to consider her position.
At the resumed hearing Mr Sheppard was called. He affirmed his declaration, which indicated he was a passenger in the taxi, and that the car in front of them ‘instead of turning right’ appeared to have a ‘change of mind’. He continued to state the taxi driver then applied the brakes in an attempt to avoid collision ‘but has subsequently made contact with the rear left-hand side of the Toyota Corolla’. He confirmed incidentally, that the taxi had moved to the left – rather than the right – in order to overtake. It turned out that Mr Sheppard provided his contact details to Mr Berhane at the time. It was by this means he was approached to give the declaration. The reason for not calling him to give evidence before the Magistrate was that ‘we only have just been able to chase him up’.
Mr Sheppard said after the accident both vehicles pulled up in the service road parallel to the kerb, behind vehicles that were angle parked. A different account was given by both Mr Berhane and Ms Rodgers that this was not in fact the case. They both talked of pulling up afterwards side-by-side, angle parked towards the northern end of the Nova building near the Mantra. It follows that although there can be no question Mr Sheppard was an honest witness, there are considerations of unreliability with respect to his ability to accurately recall this incident. This is not surprising considering he was likely to have been distracted in his position in the front passenger seat, by looking down at his lap on which he was resting a cake just before impact.
It is difficult to determine on balance which of these versions is more likely to be accurate and reliable. Both Mr Berhane and Mr Sheppard imply or refer to a distinct movement to the left on the part of the Corolla just before impact. On the other hand, Ms Rodgers plainly had no reason to veer to the left. She had to turn right to deliver the food to the business in the Nova building. She produced an invoice affirming that fact. There were vacant parking spaces at the kerb close to the Nova building in which they parked afterwards, so that there was no apparent reason for her to suddenly change her mind as to the direction of travel.
As it is difficult to separate the witnesses, the most reliable approach is to ascertain the objective facts and the inferences that may be properly drawn from them. The photographs tendered before the Magistrate show damage to the right front side fender of Ms Rodgers’ vehicle, in the area of the forward and upper aspects of the left front wheel arch, of a scraping or brushing nature. The corresponding damage to the taxi was to the rear edge of the right passenger door, adjacent to the rear right quarter panel, with contiguous damage to the forward aspects of the rear wheel arch.
It necessarily follows that at the point of impact the vehicles brushed each other at a very shallow angle. The fact that the damage to each vehicle was of a surface nature, and that relatively minor damage was caused to both, tend to reinforce that conclusion. If one were to suppose that Ms Rodger’s vehicle was stationary in a parallel position to the lane lines which (all three witnesses attest that it was), it is difficult to appreciate how damage could be caused to her left front wheel area, given that the following vehicle had to pull out to the left to pass her. Had that been the case, it was more likely to have suffered damage to the rear, or rear left side, with corresponding damage to the right front of the taxi.
The objective evidence therefore demonstrates that her vehicle could not have been in a straight or parallel position to the Southern lane of Pirie Street at the time of impact, so that for whatever inexplicable reason, she must have turned slightly to the left. Otherwise there is no logical explanation for the damage of the type sustained to both vehicles.
Even so, as a driver of a following vehicle to the rear of the Corolla, Mr Berhane was in a much more advantageous position to observe what was happening ahead and to take appropriate evasive action. There can be no escaping from the conclusion that he left far too little room between his taxi and the Corolla to safely pass to the left, whether or not there was a vehicle parked in the left kerb parking lane adjacent to the point of impact in Pirie Street restricting the room available to him to pass. In that situation it is appropriate that the Taxi share the majority of the responsibility for the impact. In the circumstances liability should be apportioned of 80 per cent against the taxi, and 20 per cent to Ms Rodgers.
For the above reasons the judgment of the Magistrate is rescinded in part. In lieu thereof there will be judgment in favour of the appellant Mr Haiu for 20 per cent of his property damage of $1,234.20, namely $246.84. Since the respondent Ms Rodgers has essentially remained the successful party, the order that she have attendance costs of $160 payable within 14 days as ordered by the Magistrate, must remain.
Although damage to her Corolla was assessed by ‘SYD-CAN’ Crash Repairs at $1,252.55, there was no counter-claim for this sum, accordingly no occasion arises for a set-off of the 20 per cent of the amount awarded as the judgement sum.
As the statement of the witness Mr Sheppard was available for some time but not given to Ms Rodgers until minutes before the review was first called on in the District Court as it should have been, she should also have an additional attendance cost of $80.00 to reflect the fact that the hearing had to be adjourned due to no fault on her part.