Higgins v Thandi No. Scgrg-99-1169 Judgment No. S513

[1999] SASC 513

WEDNESDAY, 1 DECEMBER 1999

HIGGINS v THANDI
[1999] SASC 513

Magistrates Appeal

PRIOR J    The appellant was the defendant in proceedings instituted in the Magistrates Court.  He seeks to have the respondent's claim against him dismissed. 
A magistrate found both parties at fault with respect to a collision between two motor vehicles on Hackney Road, Hackney, last February.  The magistrate apportioned liability pursuant to s 27A of the Wrongs Act 1936, finding the present appellant 75 per cent responsible for the damage resulting from the collision and the respondent 25 per cent. 
By the notice of appeal the appellant claims the magistrate erred in this apportionment given particular findings, and the "unchallenged evidence that the appellant was already in the carriageway before the collision".
The accident occurred at the junction of Westbury Street with Hackney Road.  The respondent is the owner of a taxi.  On this occasion it was being driven by a Mr Rupiano.  He gave evidence of driving at about 60 kph in a southerly direction along Hackney Road, in the lane closest to the median strip separating the southbound carriageway of Hackney Road from the northbound carriageway of that road.  Rupiano said he noticed a build-up of traffic in the lanes ahead of him. 
Hackney Road intersects Botanic Road and North Terrace, some 50 metres south of the junction with Westbury Street.  Two lanes for right-turning traffic also exist at that intersection, which is controlled by traffic lights.  Rupiano was intending to turn right at the traffic lights.  His evidence was that he moved his vehicle to the right at the point where the right turning lanes commence for south-bound traffic, slowing his taxi to about 40 kph, when he suddenly became aware of the appellant's vehicle moving out of Westbury Street between a gap left by stationary vehicles in the inner lanes. 
The magistrate accepted Rupiano's estimate that he was some 50 metres, or five seconds from impact with the appellant's vehicle when he first saw it, braking and swerving then to the right in an attempt to avoid a collision.  A collision did occur between the front left side of the taxi and the right side of the appellant's vehicle.  The respondent claimed damages against the appellant.  Costs of repairs to the taxi were $4474.20.  A further claim for $800 was made for loss of earnings resulting from the taxi being off the road for repairs for some four and a half days. 
The appellant's evidence was that he drove out of Westbury Street into Hackney Road, intending to turn right and travel north along that road.  When his vehicle reached the junction, he made use of the gap left at the junction by the stationary vehicles proceeding south along Hackney Road.  His evidence was that he slowly moved across the lanes.  When he reached the bus lane, the first of the two right-hand turn lanes, he said he could see to the north for some 50 metres.  He said no traffic was coming in either the bus lane or the other right-hand turn lane west of it for turning vehicles.  He therefore proceeded across the bus lane and right-turn lane and was stationary at the gap in the median strip for about five seconds, when he suddenly heard the sound of brakes.  He looked to his right and saw a vehicle heading towards the right side of his vehicle; the collision occurred in this way with his vehicle being stationary. 
The appellant's evidence was that his vehicle could not be economically repaired.  He claimed $5140 as damages, being the cost of replacing his car with a utility said to be needed for his business.  The respondent challenged the amount of the appellant's claim.  The magistrate awarded $3250 as the appellant's damages. 
Given the conflicting version of events from the witnesses called, the magistrate reserved his decision  "to reflect upon the evidence".  The magistrate found that the appellant: "could not have been stationary within the junction for anything like five seconds.'".  He said that he reached the view that "the appellant's vehicle was still in forward motion as the taxi approached".  The magistrate expressly accepted the suggestion made by the taxi driver that there was very little time available for him to take evasive action.  His Honour then said:-
 "I am not prepared to place reliance upon Mr Higgins' evidence that the roadway was clear as far as he could see to the north.  I think that he made a judgment that he could cross, and that then his attention was principally drawn to what was coming from his left side.  If the road had been clear of traffic travelling north then he could have proceeded on, and possibly the accident could then have been avoided, but that was not possible.'"
The magistrate then made reference to the only restriction of the drivers' view of each other being cars in the left lanes and said that if the appellant's version of events were correct the taxi driver would have simply driven on without regard to what was ahead of him.  He also said that if the taxi driver's approaching speed was as little as 40 kph,, the appellant must have been there for at least four to five seconds.  The magistrate then expressly said he preferred the evidence given by the taxi driver, that the appellant pulled out from the line of stationary traffic and was still in motion across the roadway as Rupiano approached. 
On that view of the evidence, the magistrate found the appellant guilty of negligence.  As for the appellant's counter-claim the magistrate, though incorrectly speaking of "a basis for a finding of contributory negligence against Mr Rupiano" clearly found that the taxi driver was also negligent.  Apportionment of responsibility for the damages sustained then followed. The magistrate found the taxi driver "should have been aware of the gap in traffic and should have been aware as he approached of a possibility of a vehicle pulling in from that gap in the traffic".  The magistrate also said that as the appellant was in the outside lane he 'had to at least cross the three to four metres of the bus lane before the path of his vehicle would embarrass Mr Rupiano".  His Honour said that, in his view, it would have been appropriate for the taxi driver "to reduce his speed even further as he approached, and had he been keeping a good lookout, he may well have been able to move to the left, rather than swerve to the right under heavy braking". The magistrate said, nevertheless, it was his view that the major proportion of responsibility was with the appellant and, on that basis, he apportioned responsibility in the way described. 
It should be noted that the magistrate's language does not reflect the specific process identified in s 27A(3) of the Wrongs Act.  The magistrate spoke of the appellant's liability being assessed at 75per cent and that of the respondent at 25 per cent.  He then awarded the respondent 75 per cent of his damages and the appellant 25 per cent of his.  The language of s 27A of the Wrongs Act identifies the correct process as being to identify a party's damage and then reduce the damages recoverable in respect of that damage "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". I think it is preferable to adhere to the language and process identified in the statutory scheme, rather than reflect the result of it by what is a common approach in some courts. 
The appellant tendered an outline of argument.  He sought to make no further submissions.  His first ground of appeal was that the magistrate's findings were against the evidence and the weight of the evidence.  I cannot agree.  The magistrate was entitled to conclude as he did, notwithstanding the equivocation in the way in which Rupiano gave evidence about distances.  This is a common experience with witnesses.  The magistrate was well entitled to make the favourable finding he did sofar as the respondent's version of events was concerned.  The fact that the appellant, as he put it, "did not waiver" in his evidence, that his vehicle was stationary for some five seconds, is of no assistance.  The magistrate was entitled to make the findings that he did.  Indeed, this is a credibility finding adverse to the appellant.  There is no proper basis upon which this court can interfere with that.  As for apportionment, the situation is the same.  The basis upon which the finding of contributory negligence was made cannot be disturbed, nor fault in the respondent enlarged by this Court.  The Wrongs Act confers a discretion on the trial court which has much latitude allowed in deciding what is just and equitable .  It is only in exceptional circumstances that it is right for an appellate court to interfere with an apportionment at trial.  This is not a case for any interference.  The appeal is therefore dismissed.  I order that the appellant is to pay the respondent $600 as his costs of the appeal.

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