Hodgson & Massadi and Anor (Civil Disputes)
[2011] ACAT 27
•29 March 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HODGSON & MASSADI AND ANOR (Civil Disputes) [2011] ACAT 27
XD 1051 of 2010 and XD 975 of 2010
Catchwords: CIVIL DISPUTE – motor vehicle collision – claim for damages – contradictory evidence of the parties - finding how it was more likely than not that the collision occurred - facts indicating negligence
Tribunal: Ms J. Lennard, Senior Member
Date of Orders: 29 March 2011
Date of Reasons for Decision: 29 March 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1051 and 975 of 2010
BETWEEN:
NORMAN WILLIAM HODGSON
Applicant
AND:
MAHER MASSADI
1st Respondent
INSURANCE AUSTRALIA LIMITED PTY LTD
2nd Respondent
TRIBUNAL: Ms J. Lennard, Senior Member
DATE: 29 March 2011
ORDER
- The applicant is to pay an amount of $3,776.00 to the respondent’s solicitor, Williams Roberts Lawyers within 28 days of the date of this order.
………………………………..
Ms J. Lennard
Senior Member
REASONS FOR DECISION
Each of these matters concerns liability for damages arising from a motor vehicle collision which occurred on 27 February 2010.
Mr Hodgson is the owner of and was driving a Ford vehicle registration number XFZ 747 at the time of the collision. The other vehicle a Ford Falcon sedan registration number YEL 96H was owned by the respondent and driven by his son at the time of the collision.
Mr Hodgson has made two applications:
a.XD 10/1051 seeking a declaration that he is not indebted to the respondent or the respondent’s insurer for damages caused to the respondent’s vehicle by the collision; and
b.XD 10/975 seeking payment of $174.00 for damages caused to his vehicle as a result of the collision.
The respondent has made a counter claim for $3,723.00, being:
·$3525.00 damages for loss of vehicle;
·$198.00 towing costs;
·
Interest and filing fee
The ACT Civil & Administrative Tribunal (the Tribunal) heard the applications together as they relate to the same facts and require The Tribunal to make a determination as to the cause of the collision and whether there was negligence on the part of either or both of the drivers involved.
The Tribunal heard the matter on 25 January 2011. Mr Hodgson appeared in person and Mr Harry Kay, solicitor, appeared on behalf of the respondent, by way of subrogation instructed by the respondent’s insurer NRMA.
The Tribunal heard evidence form Mr Hodgson, Mr Jalal Massadi, the driver of the respondent’s vehicle, Mr Jamal Massadi, a passenger in the respondent’s vehicle and Mr Daniel Parker, a witness of the collision.
The Tribunal received the following documentary evidence:
a. Various reports and diagrams submitted by the parties to insurance company in relation to collision;
b. An AFP crash report submitted by the applicant on
28 February 2010;c. Photos, maps and diagrams of the collision site;
d. Photos showing the damage done to the respondent’s vehicle;
e. An assessor’s report from Brian Christenson setting the value of the respondent’s vehicle at $3,525.00;
f. A copy of the applicant’s driving test results dated 12/05/10.
The evidence of each of the drivers involved in the collision was directly contradictory as to the place and manner of the collision. The Tribunal was not able to determine, from the evidence of the parties alone, what had occurred at the time of the collision. Mr Hodgson gave his evidence in an agitated manner and was unclear as to exactly what had transpired: he admitted that he was not familiar with the road, he was looking for the exit and he went past it, and, under cross examination Mr Hodgson conceded that he had not seen the other vehicle approaching. However the witness Mr Daniel Parker was travelling behind the respondent and had a clear view of the collision. Taking his evidence together with the photographic evidence of the damage to the vehicles the Tribunal finds that it is more likely than not that the collision occurred as follows:
a. The applicant was driving along William Hovell Drive and wished to turn onto Tuggeranong Parkway;
b. The respondent and the witness Mr Parker were travelling behind him;
c. The applicant went past the turn off, and realising that he had missed the exit made a late turn across ‘no man’s land’ and onto the exit roadway;
d. In doing so, he failed to keep a proper lookout for vehicles correctly exiting from William Hovell Drive to the Parkway; and
e. Struck the front passenger side door of the respondent’s vehicle.
Further taking into account the lengthy evidence given by the applicant, it was clear that he had not kept a proper lookout for other vehicles when entering the exit lane.
While the applicant asserted that the driver of the respondent’s vehicle had been travelling at an excessive speed, there was no evidence before the tribunal to support that assertion. The evidence of Mr Parker was that the driver of the respondent’s vehicle was proceeding within the speed limit and had properly indicated that it was moving into the exit lane.
Mr Parker gave evidence by phone and confirmed his written statement in which he said that he was travelling behind the vehicle driven by Mr Jalal Massadi and that he observed a vehicle travelling in front of that car and all of a sudden the applicant’s vehicle made a late right hand turn into the exit lane without activating its right hand turning indicator.
Mr Hodgson’s failure to keep a proper lookout for vehicles behind or beside him as he turned to enter the exit lane,and failure to indicate his intention to enter the exit lane were negligent.
The tribunal, apart from the mere assertion of excessive speed, had no evidence to indicate that Mr Jalal Massadi had contributed to the collision or failed to take proper steps to avoid it.
The applicant is liable to compensate the respondents as follows:
1. $ 3525 damages for loss of the vehicle;
2. $132 towing costs, and
3. $119 ACAT filing fees.
………………………………..
Ms J. Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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