Hardwick v Harford and Mahoney - [2005] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HARDWICK v HARFORD AND MAHONEY
Judgment of His Honour Judge Rice
17 February 2005
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
MINOR CIVIL REVIEW
Two cars in same lane travelling south on a road towards Grand Junction Road - both cars travelling slowly - truck in the lane to the left and rear of the cars - right lower corner front of van portion of truck scrapes along rear car on its left-hand side and hooks into its windscreen pillar on left side, pulling that car sideways and then into the side of the car in front.
Held, neither car driver at fault - decision of the learned Special Magistrate confirmed that driving of truck driver the sole cause of the collision.
Magistrates Court Act 1991 s 38, referred to.

HARDWICK v HARFORD AND MAHONEY
[2005] SADC 14
Introduction

This is a review of a judgment given in a Minor Civil Action by Mr G. Clark SM on 29th October, 2004. The action arose out of a motor vehicle collision involving three vehicles. This review is governed by s 38 of the Magistrates Court Act 1991, particularly subsections (6) and (7). It is not necessary to show that the learned Special Magistrate made an error for the review to succeed, although the presence of error may reveal a defect in the judgment.
I will turn to the factual circumstances shortly. So far as the procedure upon review is concerned, all of the parties appeared before me. I have considered the evidence from the Magistrates Court and before this Court, and the submissions of the parties on the facts, together with a plan and photographs of Mr Harford’s car.
Factual circumstances
The plaintiff, Mr Mahoney, owned a Honda Prelude. The collision occurred on the 4th September, 2002 at which time Mr Mahoney’s car was being driven by a Mr Baldacchino. Mr Baldacchino was driving the Honda south along Briens Road towards Grand Junction Road at Northfield.
The defendant, Mr Harford, was also driving south along Briens Road towards Grand Junction Road. Both Mr Baldacchino and Mr Harford were in the right-hand lane or the lane closest to the middle of the road. Mr Baldacchino was immediately in front of Mr Harford and was intending to cross Grand Junction Road.
At that time, Mr Baldacchino and Mr Harford were travelling slowly due to a pause in the traffic immediately ahead of them. There was no suggestion in the evidence or during submissions that Mr Baldacchino or Mr Harford drove negligently or were in any way responsible for the collision that followed. That is also my own assessment of the situation.
A third party, Mr Hardwick, was travelling in the same direction as Mr Baldacchino and Mr Harford, but was in the left lane (of two lanes for vehicles travelling in that direction) intending to turn left into Grand Junction Road. Initially, Mr Hardwick, driving a furniture truck, was to the left of Mr Harford and a little to the rear. Although not travelling at an excessive speed, Mr Hardwick was moving faster than the other two cars.
Very shortly before the collision, Mr Baldacchino remembers looking to his left through the passenger-side window and seeing a large wheel of a truck in the lane immediately to his left. The next thing he was aware of was the collision between his car and Mr Harford’s car that had been travelling directly behind him. However, the collision between Mr Baldacchino’s car and Mr Harford’s car was not a rear-end collision but one where Mr Harford’s car struck Mr Baldacchino’s car on the passenger door (it being only a two-door car) and to the rear of Mr Baldacchino’s car. The damage to Mr Baldacchino’s car suggests that the initial contact was at the passenger door and then Mr Harford’s car scraped backwards along Mr Baldacchino’s car.
It is also clear from all the evidence and submissions that the lower front right corner of the van section of Mr Hardwick’s truck scraped along the left side of Mr Harford’s car and hooked into the left front windscreen pillar, dragging it along. As mentioned, the left side of Mr Baldacchino’s car was damaged by the right side of Mr Harford’s car.
The original decision
The learned Special Magistrate quite correctly found in favour of the plaintiff, Mr Mahoney (via the driver on this occasion, Mr Baldacchino). As the learned Special Magistrate observed, the real issue was between Mr Harford (moving slowly behind Mr Baldacchino and not attempting to change lanes) and Mr Hardwick (driving a truck in the adjacent lane on the left), about to do a left turn.
The learned Special Magistrate found that a portion of Mr Hardwick’s truck came into collision with Mr Harford’s car and then propelled that car into the plaintiff’s car being driven by Mr Baldacchino.
Mr Hardwick challenges that conclusion on two grounds. First, he contends that, bearing in mind that Mr Baldacchino saw a wheel of the truck just before a collision with his car, there is no scope for the conclusion that the truck collided with Mr Harford’s car and propelled it onto the side of Mr Baldacchino’s car. Secondly, the damage to Mr Baldacchino’s car (to the passenger door and sliding backwards) is also inconsistent with that conclusion. (I do not think a substantial scuff mark to the front right tyre of the truck is sufficiently clear to be of use in reconstructing the events.)
As to the second point, I do not think that invalidates or casts doubt on the Magistrate’s conclusion. If Mr Harford’s car came into contact with Mr Baldacchino’s car at the time Mr Harford’s car was slowing, a scraping mark backwards would not be unexpected.
As to the first point, it may well be that, as the truck collided with Mr Harford’s car and was propelling it, Mr Baldacchino saw the front wheel of the truck just before Mr Harford’s car collided with him. Mr Baldacchino cannot say whether he saw the front or back wheel of the truck.
Conclusion
Quite apart from the findings of the learned Special Magistrate, my own view is, with respect, in accord with his. I accept that Mr Harford was moving quite slowly behind Mr Baldacchino. Mr Harford was not trying to change lanes. The only sensible explanation for what happened is that Mr Hardwick’s truck was at an angle to Mr Harford’s car and that it hooked onto Mr Harford’s car, pulled it sideways (left) and, after the two parted company, Mr Harford’s right side collided with Mr Baldacchino’s left side.
It is not always possible to say precisely how a collision is caused, but, based upon the physical evidence (photographs of Mr Harford’s car), the plan and the oral evidence, the explanation I have given is more likely. I conclude that, on the balance of probabilities, that is how the collision occurred.
Mr Harford was not negligent, neither was Mr Baldacchino. The cause of this collision was Mr Hardwick’s driving and he should bear the cost of the plaintiff’s damages.
Upon the hearing of the review, Mr Dnistriansky appeared as an observer on behalf of the plaintiff. The plaintiff was always going to succeed and the real question was whether one or other or both of the other drivers were obliged to pay. Mr Dnistriansky sought costs on behalf of the plaintiff. The plaintiff was not entitled to be represented. Mr Dnistriansky was only an observer and did not participate in the review. No costs should be payable in that situation.