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 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."

[1] (1971) 1 SASR 172

8      In 1986 von Doussa J in Walton v Rowbottom[2] 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. ..."

[2]      17 Sepember 1986, unreported Judgment No 9362

9      The appellant had an obligation to keep a proper look out.  Had she seen the semi trailer turning left she could have considered the possibility that it would protrude into her lane.  Mr Heyn could see the situation arising.  He had to anticipate that the appellant's look out might be defective, or that she might misapprehend the extent of the danger or for whatever reason, brake suddenly.

10     In finding the appellant guilty of negligence,  the magistrate concluded:

"In my opinion, the general tenor of her evidence is that she was alarmed by the presence of the large vehicle which appears to have been in relatively close proximity to her.  She then plainly overreacted.  That action, particularly as to the 'slamming on' of her brakes I find to be negligent." [10]

11     I reject the challenge to this finding.  On the appellant's own admission, her lookout was defective.  The semi-trailer was visible.  Had she kept a proper lookout she would have seen it earlier. This would have permitted her to brake earlier and less severely.  Her failure to keep a proper lookout was a cause of the collision.

12     The respondents did not challenge the finding that Mr Heyn had breached his duty.             

Apportionment

13     S 27A of the Wrongs Act (1936) SA requires a consideration of the extent to which the appellant’s damages should be reduced.  The court is required to reduce the damages payable to the appellant to such extent as it thinks just and equitable, having regard to her share in the responsibility for the damage.

14     The principles guiding the court on the issue of apportionment are well established.  They were summarised in Podrebersek v Australian Iron & Steel Pty Ltd[3] (493-494) as follows:

"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 (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited.  It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."

[3] (1985) 59 ALJR 492

15     These remarks were approved by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina[4].  See also Mugford v Ames[5] and Hooker v Grinham [6].

[4] (1985-1986) 160 CLR 301 at 311;

[5] Judgment No. [2000] SASC 241

[6]      Judgment No S6424 5 November 1997 unreported.

Comparison of Culpability

16     The magistrate made findings of negligence on the part of Mr Heyn.  He said:

"I would respectfully agree with what has there been stated,[7] and it is my opinion that Mr Heyn's negligence has been established when regard is had to the circumstances of this case. This is because I would find that, although Mrs Kambouridis did abruptly change from the lefthand lane to the righthand lane, thereby probably embarrassing Mr Heyn, that situation had ceased. Mr Heyn's evidence was that she then proceeded on and he, accordingly, accelerated as well. She was able to stop her vehicle because she considered the truck constituted a danger. Mr Heyn could not respond in time and it therefore appears to me that he was travelling too close. To this end, I refer to comments of Clarke JA in the case of Broadhead v Maybury (1988) 7 MVR 555 @ p.559. His Honour said 'The test of unforeseeability is not a demanding one but, in any event, the occurrence of a vehicle stopping suddenly when proceeding in a line of traffic along a road, could hardly be described as unusual. That this happens inexplicably from time to time is also not unheard of. Indeed, one very frequent cause of accidents of this nature is the action of a driver driving in his car too close to the one in front without making any allowance for the risk that an emergency will arise'." [8]

[7]               The magistrate was referring to the passage from Kosinski v Snaith referred to in Mugford v Ames and set out in paragraph 18 below.

17     The magistrate erred in his assessment of Mr Heyn's breach of duty.  He correctly found a breach of duty but then failed to evaluate the seriousness of that breach. 

18     In Mugford v Ames[8], Martin J (speaking for the Full Court) emphasised the onus on a following driver as a heavy onus.  He explained the reason for this in the following passage:

"It is in the context of apportionment that it is appropriate to have regard to the duty of drivers of following vehicles to drive with such care as to enable them to avoid colliding with vehicles in front when such vehicles are required to stop.  The Saskatchewan Court of Appeal in Kosinski v Snaith (1983) 1 DLR (4th) 170 correctly characterised the onus on the following driver as 'heavy'. The Court provided a helpful and accurate summary of the content of the duty in the following passage (p 174):

'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.'  [42]

There are sound reasons for imposing such a duty of care upon following drivers.  It is not uncommon for emergency situations to require a driver to stop suddenly and, importantly, modern traffic controls and conditions frequently require vehicles in a line of traffic to stop.  Compliance with the duty of care by the following driver is critical to an orderly and safe flow of traffic. [43]

The circumstances giving rise to the sudden cessation of forward movement by the appellant’s Mazda were not unusual or unexpected (cf Broadhead v Maybury (1988) 7 MVR 555 and Dodig v Sanders (1989) 10 MVR 29). The respondent appreciated that a situation of danger was developing and had ample opportunity to avoid the impact. In view of the high standard of care properly imposed upon following drivers, in my opinion a comparison of culpability and the relative importance of the acts of the parties demonstrates that the respondent bears a greater responsibility for the collision and his damage than the appellant. In the circumstances that I have found existed, in my opinion it is just and equitable to reduce damages payable to the respondent by 70 per cent." [44]

[8]      Mugford v Ames Judgment No [2000] SASC 241

19     Further, Mr Heyn was driving a TransAdelaide bus, a large heavy vehicle and as such was under a heightened duty.  In Cocks v Sheppard[9] Murphy J described this duty as one of the need to take the utmost care.  He said at (595):

"Reasonable care on the part of those in charge of such a vehicle [a huge heavy vehicle] is the utmost care."

[9] (1979) 53 ALJR 591. See also Gibbs J at 594.

20     Mr Heyn also was in a position to take evasive action.  He was aware of the approach of the semi-trailer from Sixth Avenue and he observed it to pull partly into the right hand lane.  He was aware that the appellant was driving in a manner that to him indicated a lack of care because of the embarrassment she had caused him when she pulled out from the left lane to the right lane.  He was also on notice of the emergence of a dangerous situation as the truck moved further into the right hand lane. His obligation was to guard against the possibility that the appellant would fail to see the truck and act precipitously as a result.

21     The magistrate erred in failing to consider the heavy onus on Mr Heyn as a following driver; his heightened duty as the driver of a large and heavy vehicle; and the notice he had that a dangerous situation was arising.

22     As earlier observed the appellant failed to keep a proper lookout.  She failed to see the semi-trailer until the last moment. However when she did see it it was encroaching into her lane and she thought it would block her path. Her reaction of braking suddenly was not unreasonable. It was action in the agony of the moment.  The need to do so arose because of her poor lookout and failure to drive defensively. Her breach of duty occurred when she was on notice that something untoward may be happening ahead as the traffic in the left lane was coming to a halt. 

23     I consider an appropriate apportionment to be 70/30 in favour of the appellant, that is, the appellant should bear 30% of the responsibility for the collision.   Her damages, if any, are to be reduced to that extent.  In coming to this conclusion I have considered the respective culpability of the parties and the part each played in causing the collision.  I have reviewed their entire conduct.  I have considered the heavy onus on Mr Heyn as the driver of the following vehicle, and the size of his vehicle.  I have concluded  that the respondents should bear the major responsibility for the collision.

Damages

24     The appellant claimed that she injured her neck, lower back and knees and suffered a stress anxiety state of some severity.  She has had ongoing treatment and following the collision, visited a number of general practitioners and medical specialists, as well as undergoing physiotherapy. She has seen psychiatrists and a psychologist. 

25     Some 15 years prior to the accident, she had sustained a lower back injury. She further claimed that this injury was exacerbated by the collision.  She had also previously suffered a mental anxiety state which resulted from the breakdown of her marriage.  The appellant was divorced.  She had three children, a son studying genetics and a son and daughter at secondary school.  The appellant's assertions were supported by her treating medical practitioners.

26     The magistrate did not award damages.  He concluded:

"Overall, the evidence, in my view, is unreliable by and large, as to supporting the plaintiff's contentions that she has suffered physical and mental injury as a result of the accident.  Although Mr Possingham urged me to accept that this plaintiff had suffered four years of pain and disability, I am not persuaded, as I must be, and on the balance of probabilities that she now complains of can be related to what occurred in the accident.  In my view there is a probability of a significant pre-existing disabling situation both physically and psychologically. I would accept the views of the defendant's medical witnesses.  In my opinion, any injury suffered, in the accident, was of a minor nature and, at best for the plaintiff, would be related to a slight aggravation of a pre-existing condition, for example, a discogenic injury or injury to the lower back.  I am not even able to accept that there was any marked injury or at all to the plaintiff's knees.  In my opinion, the collision was a minor one." [35]

The Nature of the Collision

27     The respondent's medical witness Mr Johnson was under a misapprehension about how the accident occurred.  He had understood that both vehicles were moving at the time of the collision and that the bus had given the appellant's vehicle "a nudge".  In his report, he considered that the minor nature of the collision was a significant factor which negated the existence of serious injury.  The magistrate said:

"In particular, Mr Johnson said that given the circumstances of the accident he would categorically state ‘I don't consider the accident was severe enough to cause the disc lesion’". [27]

28     When cross examined, Mr Johnson acknowledged that the collision of the bus with the appellant's stationary vehicle would cause more severe trauma.  The magistrate failed to have regard to this misunderstanding when evaluating the evidence of Mr Johnson.  In fact, the magistrate placed particular reliance on Mr Johnson’s opinion that the collision was minor.  As he had misunderstood the circumstances of the collision such reliance was misplaced.

The Medical Evidence

29     All of the medical practitioners who examined the appellant agreed that she sustained some injury in the collision.  The magistrate expressly accepted the evidence of Mr North a neurosurgeon and Mr Johnson a surgeon.

30     Mr Johnson reported:

......... "The details of the plaintiff's injuries received in the vehicle accident have been described and whilst these injuries in the initial phases would have had an organic basis I believe the injuries suffered in all probability would have settled over the subsequent three to six months."[10]

[10]     Report of Mr Johnson dated 4 .2. 2000.

31     Mr North reported:

"1..... I think that her injuries have now stabilised in that no further improvement or deterioration can be expected.

2I think that she has a permanent residual disability of the neck, amounting to 15 per cent.

3...... My opinion is that a cervical fusion is likely to be an unsuccessful operation.  Her dominant complaint is headache and this is closely followed by a sore right shoulder.  I do not think that a cervical fusion will help these two symptoms in a material way.  It is possible that a cervical fusion would help those symptoms which are radicular in nature in her right upper limb.  I think that it is in her best interests to avoid surgery because of the low chance of success.  In addition, a cervical fusion does carry some risks and from time to time, is followed by unexpected sequelae.  Spinal cord injury and consequent leg paralysis does occur, although this chance is very low.

4I am dependent on the accuracy of her history in assessing her ability to cope with normal day to day activities.

5...... I think that her prognosis is excellent in physical terms.

6I think that there is an uncertain relationship between the onset of her neck condition and the vehicular accident on 1st May, 1996.  I am unsure if she had sought medical attention for her neck before the vehicular accident.

7...... It is likely that she was significantly impaired for a period of at least seven days as a consequence of injuries directly related to the motor vehicle accident in May, 1996."[11]

[11]     Report of Mr North dated 2.9.98.

32     Both witnesses were of the opinion that the appellant had sustained injury in the collision.  It follows that the acceptance of such evidence necessitates an award of damages.  The magistrate erred in failing to make an award of damages.  This error was compounded by a number of other errors.

33     The magistrate heard evidence from a number of medical practitioners on behalf of the appellant. A number of specialist reports were tendered.  The magistrate recounted in his reasons the substance of much of the evidence but then failed to make any findings as to whether he accepted or rejected all or any of this evidence nor provide reasons for such findings.  He should have done so.

34     Reports of Mr Keen, a surgeon, detailing the appellant’s knee injuries were tendered.  The respondent did not require Mr Keen's attendance for cross examination. The magistrate failed to make findings with respect to Mr Keen's evidence.

35     There were significant differences between the opinions of the medical witnesses that were accepted by the magistrate.  Mr North considered there to be a permanent 15% disability in the appellant's neck whereas Mr Johnson was of the view that she had no permanent disability.  The magistrate made no findings which resolved these differences.  He simply accepted both witnesses.

36     Further, no reasons were provided to explain the apparent preference of the evidence of the respondent's medical witnesses to that given by the appellant's witnesses.   I consider this to be unsatisfactory.  A crucial issue to be resolved was which medical opinions were to be accepted.  The reasons for the magistrates conclusion should have been disclosed.

Appellant's Testimony

37     Although critical of the appellant's testimony the magistrate failed to make any clear findings in that regard. 

38     He did not regard her evidence as being deliberately untruthful.  However he considered it unreliable. I consider his reasoning insofar as it has been disclosed to be unsatisfactory.  Whilst it is to be observed that some issues were identified and addressed, he failed to deal with the issue of credibility in a definitive manner. The failure to indicate clearly the basis for conclusions renders it exceedingly difficult if not impossible to fairly deal with the issues on appeal.[12] 

[12]             Boylan v Farthing & Ors; Judgment No S 5057  27 April 1995; Papps v Police [2000] SASC 183.

39     These problems are compounded by the failure to articulate reasons for the apparent rejection (which I infer occurred) of much of the medical evidence before the court. 

40     Furthermore, his reasons for expressing concerns about her testimony are unsatisfactory.  He said:

"There are other aspects (with which I agree with [counsel]) that demonstrated that some form of desire to conceal what might be regarded as the true situation from the court."  [32]

41     However as counsel for the respondent accepted, no attempt to identify those "other aspects" was made.

42     Another example is the magistrate’s conclusion:

"Overall, the evidence, in my view, is unreliable by and large, as to supporting the plaintiff's contentions that she has suffered physical and mental injury as a result of the accident."  [35]

43     The magistrate did not identify the evidence he was referring to and what he meant by "by and large".  There was a considerable body of evidence from a number of witnesses which support the appellant's case on damages.

44     The magistrate made a finding, "Further, there appears to be little evidence of increased medication or, indeed, medication at all being provided." [32]

45       To the contrary, there was considerable evidence in regard to the prescription and use of medication.  Counsel for the respondent accepted that this evidence existed but suggested that the particular finding related only to a discrete period when the appellant was employed after the accident.  However, the magistrate's reasons leave the matter with a much wider import.

46     It is necessary that findings be made and reasoning articulated so that an appellate court is able to properly exercise its functions and discharge its duties.

47     The magistrate's failure to explain the basis of crucial findings involved a breach of the principle that justice must not only be done but must be seen to be done.[13]

[13]     Papps v Police [2000] SASC 183

Conclusion

48     In the particular circumstances of this matter it is impossible as an appellate court to come to a fair conclusion as to an appropriate damages award.  This is primarily due to the failure of the magistrate to make critical findings or to articulate the basis of his apparent conclusions.  Counsel for the respondent submitted that a retrial of the issue of damages, was unavoidable. Counsel for the appellant acknowledged the major difficulties in assessing appropriate damages without hearing expert testimony.

49     Counsel for the respondents invited the court to assess damages on the basis of the evidence of the two medical witnesses accepted by the magistrate.  He suggested that an award of $3,000-$5,000 would be appropriate before apportionment.  This proposal was rejected by the appellant.  I consider that such an approach would not be appropriate in the circumstances.  The errors to which I have referred make such a pragmatic solution unsafe and unfair.  Without hearing evidence, a fair assessment cannot be made.

50     I make the following orders:

1      Appeal allowed.

2Judgment be entered for the appellant for 70% of her damages to be assessed.

3The matter be remitted for further trial before a different magistrate on the issue of the assessment of damages.

4That the respondent pay the appellant's costs of the appeal to be taxed.

JUDGMENT CITATIONS

LISTED IN ORDER OR APPEARANCE IN THE JUDGMENT

1 (1971) 1 SASR 172

2      17 Sepember 1986, unreported Judgment No 9362

3 (1985) 59 ALJR 492

4 (1985-1986) 160 CLR 301 at 311;

5 Judgment No. [2000] SASC 241

6      Judgment No S6424 5 November 1997 unreported.

7The magistrate was referring to the passage from Kosinski v Snaith referred to in Mugford v Ames and set out in paragraph 18 below.

8      Mugford v Ames Judgment No [2000] SASC 241

9 (1979) 53 ALJR 591. See also Gibbs J at 594.

10Boylan v Farthing & Ors; Judgment No S 5057  27 April 1995; Papps v Police [2000] SASC 183.

11     Papps v Police [2000] SASC 183