Kambouridis v Heyn - [2000] SASC 361

KAMBOURIDIS v HEYN & TRANSADELAIDE
[2000] SASC 361
Magistrates Appeal (Civil)
GRAY J
1................ Introduction .. At approximately 3.30pm on 21 May 1996, the appellant, Mrs Kambouridis, was driving her car in a north easterly direction on Park Terrace in the vicinity of its junction with Sixth Street, Brompton.   The first respondent, Heyn ("Mr Heyn") was driving a bus to the rear of the appellant's vehicle.   It was claimed that the second respondent, TransAdelaide who employed Mr Heyn was vicariously liable for his negligence.
Circumstances of the Collision
2      The appellant said that she was severely embarrassed by a semi trailer. She was travelling in the right hand lane for north-east bound traffic and had been proceeding at 60 kph. She did not see the semi trailer before it was in front of her. She swerved and braked. The bus then collided with the rear of her vehicle.
3      Mr Heyn's account differed. He was travelling in a north easterly direction in the right hand lane on Park Terrace. He became aware that the traffic in the left lane was coming to a halt. He saw that the reason for this was a semi-trailer coming out of Sixth Street and onto Park Terrace. He observed the appellant's vehicle pull out from the left hand lane into the right hand lane. This was a sudden movement but he was able to avoid impact. The appellant then proceeded north east on Park Terrace in the right hand lane for a short period. Mr Heyn followed and as the appellant accelerated so did he. He observed the semi-trailer continue to move into Park Terrace and partly into the right hand lane. He considered that there was sufficient room for the appellant's car to pass the obstruction with safety. However, the appellant braked suddenly and the bus collided with the rear of the car.
The Magistrate’s Conclusions
4      The appellant claimed damages in negligence. Counsel for the appellant did not challenge the magistrate’s primary findings of fact. The challenge was to the inferences and conclusions drawn. The magistrate accepted the version of events put forward by Mr Heyn.
5      The magistrate found that both parties were in breach of duty. He apportioned liability 80/20 in favour of the following vehicle, that is the appellant was 80 percent responsible for the collision. The magistrate concluded that injury and loss had not been established and he dismissed the appellant's claim.
6      On this appeal, the appellant complained about the finding that she breached her duty and further said that the apportionment was made in error and was manifestly inappropriate. She also complained about the finding that she suffered no injury or loss and the consequent dismissal of her claim.
Breach of Duty
7      The circumstances of this collision bring to mind the often cited and salutary remarks of Wells J in Stoekel v Harpas[1] where he spoke some three decades ago about the duty of defensive driving. He said:
"Three or four decades ago it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kambouridis v Heyn

Details

AGLC: Kambouridis v Heyn [2000] SASC 361
Case: [2000] SASC 361
Decision Date: 2 November 2000

CaseChat Overview and Summary

In Kambouridis v Heyn & TransAdelaide, the appellant, Mrs Kambouridis, appealed a decision of the Magistrates Court that dismissed her claim for damages against the respondents, Mr Heyn and his employer, TransAdelaide, for a motor vehicle accident that occurred on 21 May 1996. The appellant claimed that she was driving on Park Terrace in Brompton when she was suddenly alarmed by a semi-trailer, causing her to brake suddenly and be struck from behind by Mr Heyn’s bus. The magistrate found both parties to be in breach of duty, apportioning liability 80/20 in favour of the appellant. The magistrate concluded that the appellant had not suffered any injury or loss and dismissed her claim. On appeal, the appellant challenged the findings of negligence, the apportionment of liability, the finding that she suffered no injury or loss and the consequent dismissal of her claim.

The court found that the magistrate erred in his assessment of the respective breaches of duty by the appellant and Mr Heyn. The court held that the magistrate failed to evaluate the seriousness of Mr Heyn’s breach of duty as a following driver and did not properly consider the heavy onus on following drivers to drive with care to avoid colliding with vehicles in front. The court also held that the magistrate failed to consider the heightened duty of care owed by Mr Heyn as the driver of a large and heavy vehicle, and his notice that a dangerous situation was arising. The court concluded that an appropriate apportionment would be 70/30 in favour of the appellant, that is, the appellant should bear 30% of the responsibility for the collision. The court found that the magistrate erred in failing to award damages to the appellant. The court held that the magistrate’s reasons for rejecting the appellant’s evidence were unsatisfactory and failed to properly consider the medical evidence tendered on behalf of the appellant. The court concluded that it was impossible to come to a fair conclusion as to an appropriate damages award due to the magistrate’s failure to make critical findings or to articulate the basis of his conclusions. The court allowed the appeal, ordered judgment be entered for the appellant for 70% of her damages to be assessed, remitted the matter for further trial before a different magistrate on the issue of the assessment of damages, and ordered the respondent to pay the appellant’s costs of the appeal.

Orders