James v Williams No. Scciv-03-383 Summary

JAMES v WILLIAMS
[2003] SASC 220
Magistrates Appeal

Gray J This is an appeal against a magistrate’s decision to apportion liability following a motor vehicle collision.
Background
The collision occurred at approximately 6.40 pm on 27 March 2002 on Railway Terrace, Mile End. The appellant, Michael Paul James and the respondent, Raymond Neil Williams were driving of the vehicles involved. Both vehicles sustained property damage.
Mr William’s vehicle was travelling south on Railway Terrace. Approximately 300 to 350 metres beyond the underpass of Sir Donald Bradman Drive Mr Williams decided to turn back to travel north on Railway Terrace. He said that he checked the road behind and finding it clear he slowed, indicated his intention to turn and commenced to make a u-turn. As he began to turn his vehicle was struck on the off side front by Mr James’ vehicle.
Mr James was also travelling south on Railway Terrace. He was familiar with the road. He saw Mr William’s vehicle ahead “half on and half off” the bitumen and travelling very slowly. Mr James proceeded cautiously. As he approached Mr William’s vehicle it suddenly without warning started to make a u-turn in front of him. Mr James swerved to the right in an attempt to avoid collision. This manoeuvre was unsuccessful. The vehicles collided with Mr James’ car clipping the off side front of Mr William’s vehicle.
The Magistrates Court
Mr James initiated a claim in the Magistrate’s Court to recover damages. Mr Williams lodged a defence and counterclaim for damage caused to his vehicle. Mr Williams denied that he was negligent. It was claimed in the alternative that Mr James was guilty of contributory negligence.
The matter proceeded to trial. Evidence was given by both drivers and from the only eyewitness, a passenger in Mr James’ vehicle. Differing accounts of the collision were provided. The magistrate made the following findings:
The most obvious difference between the versions of the two drivers relates to the position of [Mr Williams] on the road at the time when he commenced to make his turn. There is also some conflict as to what distance it was that [Mr Williams] travelled between the time when he decided to make the turn and the time when he began in fact to make the turn. If [Mr James] and his witness are to be believed, I would be asked to accept that from the time when they first saw [Mr Williams’] vehicle it was crawling along the shoulder of the road, partly on and partly off the bitumen or perhaps wholly off the bitumen. There is an issue also as to whether or not [Mr Williams] had his right turn indicator operating.
I formed a better and more favourable impression of [Mr William’s] evidence than I did of the evidence of [Mr James] and his passenger.
The suggestion put by [Mr James] and his passenger that [Mr Williams] drove for any substantial distance part on and part off the road strikes me as being inherently improbable. I prefer to accept [Mr Williams’] explanation, namely, that he was not off the bitumen road at all when he passed Bunnings. He would not need to have been off the bitumen road at that point of time. What he says appeals as a matter of common sense.   He then says that he remembered that he needed to call into Bunnings and, accordingly, that he decided to make a U-turn. The probability is, and I accept [Mr Williams’] evidence to this effect, that he prepared to ready himself to make a U-turn.   It is improbable, and I do not accept, that [Mr Williams] travelled any substantial distance off the road, thinking about or deciding what to do about making this U-turn. It is far more probable, and I find it to be the case, that [Mr Williams] travelled a short distance between the time when he decided to make the U-turn and the time when he commenced to make the U-turn and that his vehicle remained upon the bitumen surface of the road at all times.
I accept [Mr William’s] evidence that he put his right turn indicators on before he commenced his U-turn. He is adamant that he did so. [Mr James] appeared to be far less certain about this. [Mr James] said that he did not see the indicators operating but his evidence as to that was not said with any great confidence or certainty.
[Mr Williams], when making a U-turn along a road such as Railway Terrace, ought to have ensured that the road behind him was clear and that he would not cause embarrassment to other drivers by making a U-turn when he did.   Upon the other hand, it is not illegal or inherently dangerous for a driver to make a U-turn.
In my view, the evidence before me points to the two drivers both not having as good a look-out as they should have done. [Mr Williams], conscious of the possible dangers associated with a U-turn, says that he looked behind him. He says that the road behind him was clear. The road behind him could not have been clear. For there to have been a collision it must be the case that [Mr James]’s vehicle was bearing down upon [Mr Williams’] vehicle at the time when [Mr Williams] commenced his U-turn.
Given that I do not accept [Mr James’] evidence that [Mr William’s] vehicle was crawling along the shoulder of the road for a considerable distance before it commenced its turn, I find that [Mr James’] look-out was not as good as [Mr James] suggests.   If [Mr James] had had an adequate look-out he would have seen [Mr Williams’] right turn indicator operating. [Mr James] could have slowed down or reduced his speed much sooner than he did.
Given these circumstances, it is my view that liability should be apportioned upon the basis that the greater responsibility for the accident rests with [Mr James] than does rest with [Mr Williams]. I find that [Mr Williams] gave notice by his indicator of an intention to make a turn. His vehicle slowed from 50 kilometres and slowed down to less than 20 kilometres. I find that [Mr Williams] had his right turn indicator operating but [Mr James] did not see it. [Mr Williams] was not aware that [Mr James] was coming up behind his vehicle and he should have been aware of that fact. But he was entitled to make a U-turn if he gave adequate notice. There was, as the photographs indicate, a dirt shoulder to the road. There was room for [Mr James] to have driven to the left of [Mr Williams’] turning vehicle if [Mr James] had been sufficiently alert to the movements of that vehicle. Accordingly, I would apportion liability upon the basis that a greater responsibility for the accident rests upon the shoulders of [Mr James] than rests upon the shoulders of [Mr Williams].
The magistrate then concluded:
In my view, [Mr James] should recover 30% of his damages and [Mr Williams] on his counterclaim should recover 70% of his damages.
Accordingly, there will be a judgment on [Mr James’] claim in the sum of $4,050 and a judgment on [Mr Williams’] counterclaim for [Mr Williams] in the sum of $700.
Issues on Appeal
Counsel for Mr James submitted that the magistrate erred in concluding that the greater responsibility for the collision rested with Mr James. It was argued that the magistrate’s decision was contrary his findings of fact and to the weight of the evidence. It was submitted that the magistrate had erred in law in finding that the defendant was entitled in the circumstances to make a u-turn upon giving adequate notice.
Counsel for Mr Williams submitted that the magistrate’s findings were reasonably open and should not be disturbed. It was contended that the magistrate was in a better position to judge the credibility of witnesses. Unless the magistrate’s findings were found to be glaringly improbable, the magistrate’s decision should not be the subject of interference.
Circumstances of the Collision
No plan of the scene was provided. However photographs taken by the parties were tendered at trial. A further bundle of photographs were tendered by consent at the appeal hearing.
The photographs show that Railway Terrace is a straight bitumen road. Two vehicles can comfortably travel in each direction. Both drivers had a clear and unobstructed view of Railway Terrace.
The vehicles collided at a point near to the centre of the road. The front near side of Mr James’ vehicle struck the front off side of Mr Williams’ vehicle forward of the driver’s door.
Consideration of the Australian Road Rules
On appeal counsel for Mr James submitted that the magistrate erred in failing to have regard to the requirements of the Australian Road Rules.
A national system of road rules was introduced in December 1999. The Australian Road Rules apply in every State and Territory. The Rules provide laws for all road users including vehicle drivers, cyclists, motorbikes and pedestrians. The Rules regulate speed limits, the making of turns, giving way, overtaking and other driving rules. The Australian Road Rules relevant to this case were not brought to the attention of the Magistrate at trial.
Rules 37 and 38 relate to drivers undertaking a u-turn
A driver must not begin a U–turn unless:
(a) the driver has a clear view of any approaching traffic[1]; and
(b) the driver can safely make the U–turn without unreasonably obstructing the free
movement of traffic.
A driver making a U–turn must give way to all vehicles and pedestrians[2].
[1] ‘Approaching traffic’ is defined as traffic approaching from any direction.
[2] ‘give way’ means the driver must slow down and, if necessary stop, to avoid a collision.
A driver undertaking a u-turn is under a statutory obligation to ensure that the road is clear of traffic and to give way to all vehicles on the road. These requirements heighten the duty of care owed by the turning driver to other road users.
Regardless of Mr Williams’ position on the road at the time that he undertook the u-turn, he proceeded to turn when the road was not clear. Mr James’ vehicle was approaching and Mr Williams was required to guard against the risk of collision. Mr Williams did not comply with the duty of care required of a driver in his position.
Obligations of the following driver
Mr James acknowledged that he had a full view of the road and that he saw Mr Williams’ vehicle. In these circumstances Mr James had a heightened duty of care to keep a proper lookout. Further, he had obligations under Rules 140 and 142. The Rules provide the circumstances in which a vehicle may overtake and who has the duty to give way when overtaking.
A driver must not overtake a vehicle unless:
(a) the driver has a clear view of any approaching traffic; and
(b) the driver can safely overtake the vehicle.
Offence provision.
(1) A driver must not overtake to the right of a vehicle if the vehicle is turning right, or
making a U–turn from the centre of the road, and is giving a right change of direction
signal.
Rule 142 specifically provides that a vehicle must not overtake another vehicle that is making a u-turn from the centre of the road and is giving a right change of direction signal. Mr James had an unobstructed view of the road before him. In his evidence to the court he said that he “sensed something was not right”. He had an obligation not to overtake a vehicle travelling in the same direction unless it was safe to do so. He should not have attempted to overtake Mr Williams’ vehicle.
In Waugh v Carter[3] Martin J addressed the obligation of the following driver:
…If [the following driver] had been paying proper attention to what was happening in front of him, he would have become aware of a sudden slowing of the vehicles.
I have also reached the view that his Honour failed to give sufficient weight to the heavy duty that rests upon a following driver. While there was a duty resting upon [the turning driver] to ensure that it was safe to execute the right turn and to give ample warning of her intention to do so, as a following driver a heavy duty rested upon [them] to drive with such care as to enable him to avoid colliding with vehicles in front when such vehicles undertake unexpected manoeuvres (Mugford v Ames (2000) 31 MVR 406). [the following driver] should have been alerted to the possibility of a change in direction of travel by one of the vehicles in front of him by reason of the sudden deceleration of those vehicles. It was not just the vehicle in front of him that [the following driver] was about to overtake. He set about overtaking both vehicles at a time when his view of the front vehicle of [the turning driver] was obscured by the vehicle driven by Ms Jackson. In those circumstances, [the following driver] was required to exercise particular care because he was not previously in a position to observe whether [the turning driver’s] vehicle was giving any indication as to a change in direction.
[3] (2001) 212 LSJS 202 at 205. See also Kambouridis v Heyn [2000] SASC 361
The Saskatchewan Court of Appeal in Kosinski v Snaith[4] characterised the onus on the following driver as "heavy":
There is a clear and well-defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper look-out; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that, for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.
[4] (1983) 1 DLR (4th) 170
There are sound reasons for imposing a heavy onus on following drivers. It is not uncommon for emergency situations to occur which require a driver to stop suddenly. Modern traffic controls and conditions frequently require vehicles take preventative action to avoid incident. Compliance with the heightened duty of care by following drivers is critical to an orderly and safe flow of traffic.
Defensive Driving
The circumstances of this collision bring to mind the often cited remarks of Wells J in Stoeckel v Harpas[5] where he spoke some three decades ago about the duty of defensive driving:
Three or four decades ago it was, speaking generally, reasonable to expect a driver to deal with the exigencies of motor and pedestrian traffic as they presented themselves from moment to moment, but he was not asked to look very far ahead and to seek out possible trouble. Today, I think that the situation has changed fundamentally. Population has increased; a high proportion of families have at least one car and not infrequently two; accidents are numerous; and death on the roads has become tragically familiar. In these circumstances, I think courts, when performing the role of a jury, are entitled, indeed bound, to require of motorists a measure of what is sometimes called defensive driving, or a look out that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger. Nowadays, for example, a young child on the footpath is not just a person so many feet away, but is a human being that may suddenly present himself in your path; a green light is not just an authority to spring off the mark without further thought, but is an invitation to look to right and left before moving off in case someone is trying unsuccessfully to beat the lights; a bus is not just a stationary vehicle, but represents cover from which, at any time, a pedestrian may emerge; a car with its turning flicker on may not be going to turn, but may have left his flicker on inadvertently; the car that you are following is to be kept a respectable distance in front of you because, at any moment, the driver may stop or slow down virtually without notice; a crest in the road is not just another part of the road, but is a danger point where a motorist, coming in the opposite direction, may well seek to pass on the rise. All these situations, and countless others besides, call for consideration by the reasonable driver because experience has repeatedly shown that perils on the road, as time goes by, seem to be giving less and less warning of their emergence. Of course, what I have said has its corollaries for other road users, but because of the marked increase in the power, weight and speed of today's vehicles, as compared with those of the immediate post-war period, the implications for the drivers of motor vehicles are, in my view, stronger. The courts have, from time to time, spoken of the need to guard against human follies, but, in my opinion, there is a need for courts to emphasize that the guarding referred to includes an ever-present attempt to foresee dangers well ahead of the immediate driving situation.
[5] (1971) 1 SASR 172, note at 172-173
Von Doussa J in Walton v Rowbottom observed that community expectations for careful driving had heightened since 1971. He said:
...The cost to the community of death, bodily injury and property damage on the road, has continued to grow. In an effort to encourage greater care and to deter bad driving penalties for offences under the Road Traffic Act have been progressively increased. The community now requires not only a measure of defensive driving, but a measure of protective driving - to protect drivers, cyclists or pedestrians. Drivers must guard against all reasonably foreseeable dangers. Prominent amongst the foreseeable risks which drivers must have in mind is the one that other road users may be careless. ... Many provisions of the Road Traffic Act establish arbitrary standards the breach of which is punishable. They do not establish immutable 'rights' to drive up to the limits prescribed regardless of prevailing circumstances. ...[6]
[6] Unreported Judgment number 9362 17/9/1986
Both Mr Williams and Mr James had the additional obligation of satisfying the common law requirements of defensive driving. These principles are of particular relevance to Mr James. He was unaware that the vehicle in front of him was acting unusually. He had the ability to take control in the situation and to slow down. He could have avoided the collision by driving defensively.
Mr James had an obligation to keep a proper look out. Had he done so he would have been more likely to consider the possibility that the vehicle ahead that was behaving unusually may pull out or turn suddenly. Mr James should have foreseen that this situation might arise. He was under a duty to anticipate that Mr William’s look out might take some action which required preventative prompt action on his part.
Approach of the Appeal Court
The powers and functions of a Court of Appeal were discussed by the High Court in Fox v Percy[7]. Gleeson CJ, Gummow and Kirby JJ reviewed the court’s earlier decisions of Warren v Coombes[8], Jones v Hyde[9], Abalos v Australian Postal Commission[10] and Devries v Australian National Railways Commission[11] and observed:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes - , the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
[7] [2003] HCA 22
[8] (1979) 142 CLR 531
[9] (1989) 63 ALJR 349
[10] (1991) 71 CLR 167
[11] (1993) 177 CLR 472

Decisions on credibility and reliability are notoriously difficult for a trial judge to make and for an appeal court to assess. As Kirby J observed in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq):[12]
The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
All of the foregoing considerations leave to be weighed, in some cases at least, the impression which the trial judge holds of a particular witness, perhaps influenced by the witness's demeanour and the kinds of considerations commonly referred to such as hesitation or displays of partisanship not readily conveyed, or conveyed at all, by the printed record. One can hold different views about whether such considerations should intrude in the assessment of qualified expert witnesses. One can strive to minimise resort to such considerations in the case of lay witnesses, out of recognition of the fallibility of human assessment of credibility from appearances. But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
This conclusion may, as I think, be true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath. But in such cases, because the appellate court cannot, in presently available records, recapture all of the information properly used to assist the trial judge's decision, the old strictures about that judge's advantage remain as relevant today as they were when first written more than a century ago. In such cases, the appellate court's rehearing must be conducted within a constraint which is set by the somewhat more restricted data available to it.
These principles govern this appeal.
Error
[12] (1999) 73 ALJR 306 at [90-92]
The magistrate’s failure to consider the relevant provisions of the Australian Road Rules permeated his apportionment. The magistrate was in error in finding that Mr Williams was entitled to make a u-turn if he gave adequate notice. The magistrate did not consider Mr Williams’ obligation as the driver undertaking the u-turn to avoid a collision. Mr Williams’ obligation was not displaced by the fact that he indicated his intention to turn. His heightened obligation could only be satisfied if there was no approaching traffic that could be embarrassed by the turn. It is appropriate for this court to reconsider the apportionment.
Challenging the Findings of the Magistrate
The magistrate heard and considered all the evidence. In reaching his decision, he preferred the evidence of Mr Williams to that of Mr James and his witness. He concluded that Mr Williams was travelling on the bitumen surface and had indicated his intention to turn. However Mr Williams failed to keep a proper look out prior to and during the turn. Mr James was the following driver. He saw Mr Williams’ car, but not his indicator. From this the magistrate concluded that Mr James’ lookout was also defective. There is no basis on which to challenge these findings. None of the magistrate’s primary findings are improbable. None have been demonstrated to be erroneous. The appellant has demonstrated no basis on which this court should interfere with the magistrate’s acceptance and rejection of the witnesses’ testimony.
Apportionment of Liability
The principles of apportionment are well established. They were summarised by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd[13]:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage… It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
These remarks were approved by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina[14].
[13] (1985) 59 ALJR 492 at 494
[14] (1986) 160 CLR 301 at 311
There is a strong argument for equal apportionment in this case. As the driver making the u-turn Mr Williams had an obligation to avoid a collision. As the driver overtaking Mr James’ obligation was not to overtake when confronted by a turning vehicle. Mr Williams had the obligation to check that there was no oncoming traffic in either direction before turning. Both Mr Williams and Mr James were under a heightened duty by reason of the Australian Road Rules. Both were also under the duty to drive defensively. Mr James had the scene before him.
Conclusion
The primary findings of the magistrate should not be disturbed. Mr Williams travelled some distance along the road between the time he indicated his intention to turn and the time he commenced to make the turn. His vehicle remained on the bitumen surface of the road at all times. Mr Williams’ look-out was defective. Mr James’ vehicle was approaching and must have been in view. The road was not clear. It was not safe to turn. By turning whilst Mr James’ vehicle was approaching Mr Williams was in breach of his duty of care.
Mr James’ look-out was inadequate. He did not see Mr William’s indicator signalling an intention to turn. He overtook Mr Williams’ vehicle when it was dangerous to do so. Mr James should have reduced his speed and driven defensively. A reasonably prudent driver in the position of Mr James ought to maintained observations of the approaching vehicle and moderated his speed until certain that the vehicle did not pose a threat of a collision.
A comparison of the culpability of Mr Williams and Mr James leads to the conclusion that both drivers were equally at fault. Both departed substantially from the standard of care required of the ordinary prudent driver.
This appeal is allowed. Each party is entitled to recover one half of their damages from the other.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 ‘Approaching traffic’ is defined as traffic approaching from any direction.
2‘give way’ means the driver must slow down and, if necessary stop, to avoid a collision.
3 (2001) 212 LSJS 202 at 205. See also Kambouridis v Heyn [2000] SASC 361
4 (1983) 1 DLR (4th) 170
5 (1971) 1 SASR 172, note at 172-173
6 Unreported Judgment number 9362 17/9/1986
7 [2003] HCA 22
8 (1979) 142 CLR 531
9 (1989) 63 ALJR 349
10 (1991) 71 CLR 167
11 (1993) 177 CLR 472
12 (1999) 73 ALJR 306 at [90-92]
13 (1985) 59 ALJR 492 at 494
14 (1986) 160 CLR 301 at 311

James v Williams No. Scciv-03-383

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established