Matthews v Atco Gas Australia Pty Ltd - [2019] WADC 143

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MATTHEWS -v- ATCO GAS AUSTRALIA PTY LTD [2019] WADC 143
CORAM:   VERNON DCJ
HEARD:   18 JANUARY 2019
DELIVERED          :   16 OCTOBER 2019
FILE NO/S:   APP 102 of 2018
BETWEEN:   HARMONY MATTHEWS
Appellant
AND
ATCO GAS AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M BOON
File Number             :   PER GCLM 15847/2015

Catchwords:

Appeal from Magistrates Court - Motor vehicle accident - Findings on competing negligence claims - Causation - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C
District Court Rules 2005 (WA), r 50(1)(d)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Road Traffic Code 2000 (WA)

Result:

Appeal allowed
Matter remitted to the Magistrates Court for rehearing

Representation:

Counsel:

Appellant	:	Mr P E Jarman
Respondent	:	Mr B A Winburn-Clarke

Solicitors:

Appellant	:	Sparke Helmore Lawyers
Respondent	:	SRB Legal

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182

VERNON DCJ:

Introduction

This is an appeal from a decision of a magistrate delivered on 19 September 2018, in proceedings arising from a motor vehicle accident on 12 September 2014 at the traffic lights controlling the intersection of Broun Avenue and Embleton Avenue, Morley, where the Kia Cerato car driven by the appellant collided with the Toyota Hi‑Ace van driven by the respondent's employee, Mr Jesse Pearce.
By way of claim and counterclaim in the Magistrates Court, each of the appellant and the respondent claimed the other was responsible in negligence for the damage to their vehicles resulting from the collision.
At the hearing on 7 May 2018, the quantum of the loss suffered by each party was agreed, as was the respondent's vicarious liability for Mr Pearce's driving.
The magistrate found that the appellant was 75% responsible for the accident and that Mr Pearce, and therefore the respondent, was 25% responsible.
As a result the magistrate ordered that the appellant pay 75% of the quantum of the damage to the respondent's van, and that the respondent pay 25% of the quantum of the damage to the appellant's car.
The appellant appeals against the magistrate's apportionment of responsibility for the collision. For the reasons set out below the appeal should be allowed.

General principles

The appeal proceeds by way of a reconsideration of the evidence that was before the magistrate: Magistrates Court (Civil Proceedings) Act 2004 (Act) s 40, District Court Rules 2005 (WA) r 50(1)(d).
A court may substitute its decision for that of the magistrate only if the appellant demonstrates that the orders the subject of the appeal are the result of a legal, factual or discretionary error by the magistrate, based on the material before the magistrate, and any additional evidence the appellant has leave to adduce: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
If one set of significant evidence is preferred over another, the magistrate's reasons should be sufficient to explain why. However, those reasons do not necessarily need to be lengthy or elaborate, or to refer to all the evidence led in a case: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27], [28].
In considering whether reasons are adequate, the court may consider what can be legitimately inferred from a reading of the whole of the reasons and the magistrate's final conclusion: Bennett v Carruthers [2010] WASCA 131 [28] (Mazza J); Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443 (Meagher JA).
An appeal court will only intervene where no reasons have been given in circumstances where they are required, or when the inadequacy is such as to give rise to a miscarriage of justice: Mount Lawley Pty Ltd v Western Australian Planning Commission [29].

Findings of fact

The following facts were not in dispute at trial:
1.Immediately before the accident, Mr Pearce was driving along Broun Avenue intending to make a right turn at the lights on Embleton Avenue.[1]
2.At the same time the appellant was driving along Broun Avenue in the opposite direction.[2]
3.The intersection at Broun Avenue and Embleton Avenue is a large one. Broun Avenue is a dual lane carriageway with two lanes plus filter lanes for traffic to turn left and right.
4.As Mr Pearce approached the intersection he pulled into the right hand turning lane. After waiting some time for the vehicles in front of him to turn Mr Pearce pulled out into the intersection across the white line.
5.Mr Pearce saw the appellant's vehicle approaching from the opposite direction, in the leftmost lane, but decided it was safe to turn and did so.
6.Mr Pearce then saw the appellant's vehicle come through the intersection. He accelerated in an attempt to avoid a collision, however the appellant's vehicle collided with the passenger rear side of Mr Pearce's van.
7.The collision occurred at approximately 5.45 pm and the traffic was very busy.[3]
[1] Reasons at [4].
[2] Reasons at [4].
[3] Reasons at [3].
Mr Pearce's evidence was that the appellant's car was 40 m away from the intersection when he saw it approaching, and the lights facing him were red.[4] Mr Pearce said he saw another vehicle in the right hand turning lane opposite him, who stopped at the line.[5] Mr Pearce's evidence was that he believed that the appellant would stop alongside the other vehicle.[6] When asked in cross‑examination why he pulled in front of the appellant's car if she was driving towards him, Mr Pearce said, 'Because the light was red. The light was red and she was nowhere near the white line'.[7] Mr Pearce said that he proceeded into the intersection at a very slow pace.[8] He said he saw the appellant enter the intersection when he was crossing the other lanes of Broun Avenue.[9] He said he tried to avoid a collision by accelerating but the van was hit towards the passenger rear side.[10] The photograph, which is exhibit 2, indicates that the point of collision[11] was in the kerb side lane.
[4] Reasons at [5], ts 11, exhibit 3 par 16 (Mr Pearce's statement dated 5 August 2017).
[5] Reasons at [5], exhibit 3, par 16.
[6] Reasons at [5], exhibit 3, par 17.
[7] ts 12.
[8] Reasons at [5], exhibit 3, par 17.
[9] Reasons at [5], exhibit 3, par 18.
[10] Reasons at [5], ts 11, exhibit 3, pars 19 and 20.
[11] Marked in green on exhibit 2.
The appellant gave evidence that she was approximately 15 m from the intersection, in the kerb side lane, when the traffic lights changed from green to amber, and was travelling at 60 km per hour.[12] The appellant said that she saw Mr Pearce's vehicle turning after she had entered the intersection, and was almost completely over the white line. She then put on her brakes and swerved to the right to try and avoid a collision.[13]
[12] Reasons at [9].
[13] Reasons at [9].
An independent witness, Ms Italiano, gave evidence that her vehicle was stopped at a red light on Embleton Avenue. She saw the collision between the appellant's car and Mr Pearce's van. Ms Italiano said initially that, as soon as the accident occurred, the lights facing her changed to green. However, Ms Italiano said in cross‑examination she had no idea how many seconds it took for the light to turn green.[14]
[14] Reasons at [8], ts 17.

The learned magistrate's findings of fact

The learned magistrate found that Mr Pearce drove the van across the path of the appellant's car, in circumstances where Mr Pearce:
(a)had seen the appellant's car approach the intersection at 60 km per hour;
(b)was turning the van across a large intersection from a stationary position;
(c)should have realised the appellant's car was not going to stop and posed a danger; and
(d)in the circumstances, should have taken more care.[15]
[15] Reasons at [25] and [26].
The magistrate also found that:
(a)the appellant was more than 15 m away from the intersection when the lights against her turned amber;
(b)the appellant was going at 60 km per hour as she approached the intersection;
(c)the appellant was travelling too fast in the circumstances where there was built up traffic at peak hour;
(d)the appellant had missed her turn off and was looking for the next turn and was not keeping a proper look out; and
(e)had the appellant not been travelling too fast and had she been keeping a proper lookout, the appellant may have been able to stop.

Grounds of appeal

The appellant raised nine grounds in the appeal. At the hearing the appellant withdrew ground 3. As to the other grounds, it is convenient to deal with ground 7 first, which concerns the way in which the magistrate dealt with the issue of causation.

Ground 7

Ground 7 of the appellant's notice of appeal is as follows:[16]
The Magistrate erred in failing to consider section 5C of the Civil Liability Act 2002 (WA) and erred in finding that any breach of the duty of care by the [Appellant] (which is denied) was causative of any loss.
[16] Amended notice of appeal filed 5 December 2018, further amended with leave at the hearing on 18 January 2019.
In order to establish liability in negligence it is necessary, but not sufficient, to establish a breach of a duty of care. It is also necessary to establish the breach of the duty of care caused the damage claimed.
Section 5C of the Civil Liability Act 2002 (WA) provides that:
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation);
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
The issue raised in ground 7 is limited to the magistrate's finding of factual causation, under s 5C(1)(a). A 'necessary condition of the occurrence of the harm' is one which must be present for the harm to occur. It is enough that the conduct contributes to the occurrence of the harm, but is not the sole cause.[17]
[17] Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan and Bell JJ).
The findings on breach of duty and causation appear in the reasons, as follows:
24.[The appellant] consistently estimated her own speed at 60kph. I found that surprising, given the built up traffic, the fact that she was entering an intersection, and that she was not familiar with the intersection. She gave evidence that she was relying on her GPS but had missed her turn off and was looking to turn at the next available turn off. She acknowledged herself that she would not have been looking or paying attention to the cars waiting to turn right in front of her as 'they should have given way to me'. In these circumstances, my view is that [the appellant] failed in her duty of care by going too fast, and not keeping a proper lookout and not taking reasonable care. She should not have been travelling at that speed,[18] and if she had slowed down and kept a better lookout she may have had an opportunity to stop.
25.Having said that, however, my view is that Mr Pearce also did not pay sufficient attention to [the appellant's] vehicle, which he had seen approaching the intersection. If she was going as fast as she said she was going, which I accept, he should have realised that she presented a possible danger, even in circumstances in which he did have to clear the intersection.
26.My finding is that it is more likely than not that [the appellant] was further away than fifteen metres from the intersection when the light turned to amber, and that she was not paying sufficient attention when she entered the intersection. [The appellant] was going at 60kph. Mr Pearce was turning across the large intersection from a stationary position, and given the time and the distance he had to travel, and given that both drivers agree he was nearly across the intersection when the collision happened, [the appellant] should have seen him and should have been more careful. However, for the same reasons, Mr Pearce should have seen that [the appellant] was not going to stop and should have realised that this posed a danger.
[18] 60 km per hour.
The magistrate's findings that Mr Pearce, and therefore the respondent, breached his duty to the appellant, by crossing the intersection in front of the appellant's car, in the circumstances found by the magistrate, and that this breach was causative of the damage, are not in dispute in this appeal.
The only finding on how the appellant's breach of her duty of care was causative of the accident is found in the last sentence of [24] and the second sentence of [26] of the Reasons.
In my view, these do not amount to sufficient findings on the issue of causation. The learned magistrate did not find either expressly, or impliedly, that it was more likely than not that, but for the appellant driving too fast, and failing to keep a proper look out, the collision would have been avoided. Her Honour found only that, in those circumstances, the appellant may have had the opportunity to stop.
In any event, in my view, the learned magistrate had made no findings on the evidence upon which to base a finding that the appellant's breach of duty was causative of the collision, and the consequential damage.
In my view, in order to determine whether the appellant's breach of duty in travelling too fast and failing to keep a proper look out caused or contributed to the collision, and the extent to which she was liable, it was necessary for the magistrate to make findings about:
(a)whether the appellant entered the intersection when the light facing her was amber, as she said, or against a red light, as Mr Pearce said; and
(b)in either case, how far away was the appellant from the intersection, when Mr Pearce made the decision to cross in front of the appellant's car.
Her Honour made no express findings about whether she accepted Mr Pearce's evidence either that the light was facing him was red, or that at that time the appellant's car was 40 m from the intersection.
Contrary to the respondent's submission there is no implicit finding that Mr Pearce was a more credible witness and had a more accurate memory of events than the appellant.[19] It is not possible, in my view, to discern whether the magistrate accepted Mr Pearce's evidence over that of the appellant. The magistrate commented only that Mr Pearce gave his evidence clearly.[20]
[19] Respondent's submissions at par 14.
[20] Reasons at [22].
While the magistrate's assessment of the relative liability of the appellant and Mr Pearce might be taken to suggest her Honour did accept that the evidence that the light was red, the limited express finding, at [26] of the Reasons, that it is more likely than not that the appellant was further away than 15 m from the intersection when the light turned amber, suggests the contrary. The magistrate's apparent acceptance of the proposition that Mr Pearce needed to clear the intersection as soon as he could do so safely, does not suggest that her Honour accepted his evidence that the light was red, given her reference to the rule that a driver who had fully entered the intersection when the lights change to yellow or red must leave the intersection as soon as it can be done safely.[21]
[21] Reasons at [18].
However, even had the magistrate accepted Mr Pearce was a more credible witness and had a more accurate memory of events than the appellant, as the respondent submits,[22] it was incumbent upon her Honour to make the necessary findings of fact based on her assessment of credibility.
[22] Respondent's submissions at par 14.
If the appellant had entered the intersection when the light was red, the appellant must have been at least 67 m from the intersection when the light turned amber, given the evidence that the light was amber for four seconds.[23] Had the magistrate intended to find either that the appellant was more than four times the distance the appellant had estimated, when the light changed to amber, one would have expected her Honour to do so expressly.
[23] Exhibit 1 - At 60 km per hour the car was travelling at 16.67 m per second. In four seconds it would travel 66.68 m.
Similarly, if the magistrate had accepted that the light facing the appellant was amber when she entered the intersection, the light facing Mr Pearce must also have been amber, not red, at the time he commenced his turn right. Again one would have expected the magistrate to make that finding expressly, and to identify how, in those circumstances the collision might still have been avoided had the appellant been travelling more slowly and been keeping a proper lookout. That would, in turn, be dependent on a finding of how far away the appellant was when Mr Pearce made the decision to turn.
Ground 7 of the appeal is upheld.

Grounds 1 and 2

Grounds 1 and 2 of the appeal are related and are as follows:[24]
1.The Magistrate failed to give any or any adequate reasons for not accepting the evidence of the [Appellant] that the [Appellant] was 15 metres away from the intersection when the light turned amber.
2.The Magistrate erred in not accepting the evidence of the [Appellant] that she was 15 metres away from the intersection when the light turned amber, particularly in light of the evidence of the traffic light timing from Main Roads (Exhibit 1).
[24] Amended notice of appeal filed 5 December 2018.
In my view it was open to the learned magistrate to reject the appellant's evidence that she was only 15 m from the intersection when the light against her turned amber, in light of the matters noted by her Honour in [11] of the Reasons, that the appellant's evidence was that she could not be certain of the distance, and it was approximate. However, as I have said, I consider that finding was insufficient to ground a finding of causation.
I do not consider that the evidence of the timing of the lights affects the veracity of that evidence. As I have said, given the light was amber for four seconds, the appellant could have been up to something less than 67 m from the intersection when she saw the light turn amber, in order to enter into the intersection when the light was still amber.
Grounds 1 and 2 are dismissed.

Grounds 4 and 5

Grounds 4 and 5 of the appeal are as follows:[25]
4. The Magistrate erred in fact and law in finding that the [Appellant] was travelling 'too fast' as it was against the weight of the evidence and was against the uncontested evidence of the [Appellant] that she was travelling within the speed limit.
5. The Magistrate erred in fact and law in finding that the [Appellant] breached her duty of care, as such a finding was against the weight of the evidence and the evidence that the [Appellant] was travelling within the speed limit, had right of way at the intersection, and her unchallenged evidence that it was not safe for her to try and stop before the intersection.
[25] Amended notice of appeal filed 5 December 2018.
The fact that the appellant was travelling at the designated speed limit is not determinative, in my view, of whether the appellant was travelling at a safe speed in the driving conditions applicable at the time. Neither, in my view, was it against the weight of the evidence, given the magistrate's findings referred to in [24] of the Reasons and that the traffic was busy.

The appellant's evidence that it was not safe for her to try and stop before the intersection was her subjective opinion, given in the context of her evidence that the light facing her turned amber 15 m before she reached the intersection, which evidence the magistrate rejected. The appellant was challenged on that evidence, and on her evidence that the light was amber.
Grounds 4 and 5 are dismissed.

Ground 6

Ground 6 of the appeal is as follows:[26]
The Magistrate erred in failing to identify what precautions ought to have been taken by the [Appellant] and failed to adequately address section 5B of the Civil Liability Act 2002 (WA).
[26] Amended notice of appeal filed 5 December 2018.
Section 5B of the Civil Liability Act provides that:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)The risk was not insignificant; and
(c)In the circumstances a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)The probability that the harm would occur if care was not taken;
(b)The likely seriousness of the harm;
(c)The burden of taking precautions to avoid the risk of harm;
(d)The social utility of the activity that creates the risk of harm.
In my view, in [24] of the Reasons, the learned magistrate specifically, and adequately, gave her reasons for finding that the appellant had breached her duty of care, and addressed the considerations applicable under s 5B of the Civil Liability Act. It was not necessary for her Honour to make specific reference to that section in her reasons.
The possibility of a collision, where a car is driven at too fast a speed for the conditions and where the driver is not keeping a proper lookout for other vehicles on the road, including vehicles that might be attempting to turn, is patently foreseeable, with a not insignificant risk, and no significant burden is imposed on drivers to take the precaution of driving at a slower speed and keeping a lookout for other drivers.
Ground 6 is dismissed.

Grounds 8 and 9

Grounds 8 and 9 of the appeal are as follows:[27]
8.The Magistrate erred in finding the [Appellant] to have been 75% responsible for the accident.
9.The Magistrate erred in finding the [Respondent] to have been 25% responsible for the accident.
[27] Amended notice of appeal filed 5 December 2018.
In my view, it follows from my findings in relation to ground 7, that the magistrate was in error in finding the appellant to have been 75% responsible for the damage to both her car and the respondent's vehicle, and the respondent 25% liable.
Whether it was reasonable for Mr Pearce to decide to make the turn, and whether the appellant's breach of duty was in any way causative of the collision, and the appropriate apportionment of liability, were dependent on findings that were not made, namely whether the light facing the appellant was red, or amber, and how far away the appellant's car was when Mr Pearce commenced the turn in front of the appellant's car, in the context of the colour of the light.
Grounds 8 and 9 are upheld.

Orders sought

The appellant submitted that, if the appeal is allowed, I am able to make a decision on the evidence of the transcript. In light of the fact that, as the respondent pointed out, the appeal concerns a net sum of $7,650.89, that would be the preferable course if at all possible, rather than remit the matter to the court below for re-hearing. Unfortunately, in my view it is not possible for me to do so.
I consider that it is possible to reject Mr Pearce's evidence that the appellant was 40 m away from the lights when the lights against her turned red, on the basis of the transcript evidence, as not being possible in light of the uncontested evidence firstly of Ms Italiano that, when the accident happened, the light facing her was red, secondly, that the timing of the lights was that amber was displayed for four seconds, followed by a period of 1.5 seconds where the lights were red in all directions,[28] and the magistrate's finding that the appellant was travelling at 60 km per hour, or 16.67 m per second.[29]
[28] Exhibit 1.
[29] Reasons [25].
Whilst the magistrate said that she was not inclined to give great weight to Ms Italiano's evidence, given its vagueness and uncertainty,[30] this relates to the evidence as to how soon after the collision the light facing Ms Italiano turned green. In relation to that evidence, the magistrate notes that Ms Italiano could not identify how many seconds it took for the light to turn green.[31] As a consequence, Ms Italiano's evidence could not assist in determining whether the light was amber or red when the appellant entered the intersection. However, Ms Italiano's evidence that the light facing her was red at the time the collision occurred was not in dispute.[32]
[30] Reasons [23].
[31] Reasons [8].
[32] As confirmed by the parties at the appeal hearing.
The evidence of the timing of the lights was to the effect that Mr Pearce's light and Ms Italiano's light would both have been red for no more than 1.5 seconds before the collision. In that time, a car travelling at 60 km per hour (without braking), would travel 25 m.[33] Accordingly, if Mr Pearce saw the appellant's car, and decided it was safe to turn, when it was 40 m away, the lights facing him, and the appellant, at that time, must have been amber, not red. Alternatively, Mr Pearce's assessment of how far away the appellant's car was, which he said was approximate, was inaccurate.
[33] 16.67 m per second x 1.5 seconds = 25 m.
The determination of the issue of whether the light was red, or amber when the appellant entered the intersection, was critical to the determination of the parties' respective claims. That finding requires an acceptance of the evidence of one or other of the appellant or Mr Pearce, based on an assessment of their credibility: that is the honesty and reliability, or accuracy, of their evidence. I am not in a position to make the necessary assessment of the credibility of either witness on a reading of the transcript.

Conclusion

The appeal is allowed on grounds 7, 8 and 9 for the reasons given.
The decision of the learned magistrate should be set aside for the reasons given, and the matter remitted to the Magistrates Court in Perth for rehearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon
15 OCTOBER 2019