Kopecky v Bathgate

[2006] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

KOPECKY v BATHGATE

[2006] SADC 117

Judgment of His Honour Judge Boylan

29 September 2006

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES

Respondent sued appellant for damage to her motor vehicle in a chain collision - respondent's car was the first vehicle in the collision chain - appellant's was the last - only one car in between respondent and appellant.  Appellant admitted hitting middle car - Magistrate found appellant had pushed middle car into respondent's - Appellant appealed the Magistrate's findings.

Held:  Decision of Magistrate affirmed

KOPECKY v BATHGATE
[2006] SADC 117

1. Mr Kopecky was involved in a chain collision.  There were three cars in the collision.  His was the third and last.  The first car was Ms Bathgate’s.  A Magistrate found that Mr Kopecky is liable for the damage to Ms Bathgate’s car.  Mr Kopecky now appeals against that finding.

2. Before making his finding, the learned Special Magistrate heard evidence from Ms Bathgate, Mr Smith, who was the driver of the middle car and Mr Kopecky.  The Magistrate summarised the evidence before him as follows:

   “2.     The first witness who gave evidence was the plaintiff, Christine Mary Bathgate, who told me that on that day she was the driver of her Holden Gemini sedan registered number VVE 066 travelling south on South Road and in the lane nearest the middle of the road.  At that point there are two lanes for south bound traffic.  She told me that it was in the early afternoon, she was on her own, that traffic in front of her backed up very quickly, a taxi immediately in front of her slammed on its brakes, so she slammed on her brakes and stopped before hitting the taxi.  She then heard the sound of brakes which she established came from a four wheel drive vehicle travelling behind her.  She heard that sound stop, there was no impact, and her immediate through was ‘Great, I haven’t been hit’.  After a short pause which she estimated to be one to two seconds she felt an impact and her vehicle was, she said, jolted forward, but did not strike the taxi in front of her.  She was quite adamant and said that without a doubt the vehicle travelling immediately behind her, that four wheel drive, managed to stop before hitting her, and that it is her belief that the vehicle behind that vehicle, driven by the defendant, hit the four wheel drive forcing it into collision with the rear or her  vehicle.

   3.     The next witness to give evidence was in fact the driver of the four wheel drive vehicle, Robert Andrew Smith, who kept notes after the collision and established the time of it at 12.50 p.m.   He was travelling south immediately behind the plaintiff’s motor vehicle driving a Ford Territory four wheel drive vehicle.  It was semi-congested traffic.  The car in front of his vehicle, the plaintiff’s vehicle, stopped suddenly.  He also stopped suddenly but did not hit the vehicle in front of him, but then a vehicle behind him impacted with the rear of his vehicle pushing his vehicle into the rear of the plaintiff’s motor vehicle.  When it was specifically put to him by me that it might be suggest ed that in fact he did hit the Gemini he specifically denied that suggestion.  He confirmed that the drivers spoke between each other after the accident and Mr Kopecky, who he identified as the driver of the Toyota van, was very apologetic.  When asked by Mr Kopecky when Mr Smith saw him he said that he looked in his rea-vision mirror and saw him approach and then collide with the rear of his vehicle.

   4.     That evidence concluded the case for the plaintiff and I then heard evidence from Mr Kopecky, who was driving the Toyota panel van, registered number WFA 928.  He was on his own in the vehicle.  He says that a taxi in front of the Gemini stopped.  He agrees that the Gemini stopped without hitting the taxi and then a four wheel drive, the vehicle driven by Mr Smith, he says collided with the rear of the Gemini.  He hit his brakes, his wheels locked and he slid and collided with the rear of the four wheel drive motor vehicle.  He produced for my consideration a number of documents which included photographs of the front of his Toyota van showing the damage that he sustained.   He says that this was mainly limited to the plastic components at the front of his vehicle and he produced documentation indicating that he had purchased second-hand parts from Oriental Four Wheel Drive and Commercial Vehicles totalling just over $200.  He produced a further tax invoice in relation to the repair costs which totalled something in the order of $300 and he therefore pointed out that his overall damages were something in the order of $500 or $550.  He says that that is an indication that it was not his fault that the four wheel drive collided with the Gemini.  He ways that that documentation, taken collectively, shows that because the damages to his vehicle were not extensive that the four wheel drive must have hit the Gemini first and he says he is fact saw that happen.”

3. The learned Special Magistrate accepted the evidence of Ms Bathgate and Mr Smith.  His Honour was particularly impressed by the fact that both of them had a clear memory of there being a pause before Mr Smith’s vehicle collided with Ms Bathgate’s car.  The Magistrate thought that Mr Kopecky was mistaken when he gave evidence that the van he was driving did not push Mr Smith’s vehicle into the rear of Ms Bathgate’s.   I have no reason to differ from the conclusion of the learned Special Magistrate.  He had the particular advantage of hearing evidence from Mr Smith, who did not appear  before me.  All three witnesses at the trial had to give evidence about an emergency situation.  In those circumstances, it would often be difficult to assess whether any one of them had accurately remembered the events.  But in this case there was clear evidence from Ms Bathgate and Mr Smith that there was a pause before Mr Kopecky’s van pushed Mr Smith’s vehicle into the rear of Ms Bathgate’s. 

4. I make it quite plain that I accept Mr Kopecky as an honest witness.  He gave an honest account of what he thought were the circumstances of the collision.  I agree with the learned Special Magistrate that Mr Kopecky must be mistaken. 

5. I affirm the decision of the learned Special Magistrate.