Motor Accident Commission v Baker - [2004] SASC 329

Supreme Court of South Australia
(Magistrates Appeals: Civil)
MOTOR ACCIDENT COMMISSION v BAKER
Judgment of The Honourable Justice White (ex tempore)
11 October 2004
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
Motor vehicle accident - Magistrate accepted respondent's evidence at trial - Magistrate's findings based on that acceptance - Magistrate relied on additional matters - Magistrate erred in findings concerning some of those additional matters - Magistrate erred in finding that witness had told police that she remembered nothing of the accident - Magistrate erred in giving weight to post-impact positions of vehicles, given that it was unclear which vehicle had hit a Stobie pole - Despite errors, Magistrate's findings ultimately depended on assessment of witnesses' credit - Magistrate did not misuse the advantage of seeing and hearing witnesses - Appeal dismissed.
Magistrates Court Act 1991, s 40; Motor Vehicles Act 1959, Part 4, s 124A, referred to.
Devries v Australian National Railway Commission (1993) 177 CLR 472, applied.

MOTOR ACCIDENT COMMISSION v BAKER
[2004] SASC 329
Magistrates Appeal
WHITE J:
Introduction

This is an appeal, pursuant to s 40 of the Magistrates Court Act 1991, from a decision of a Magistrate apportioning liability for a car accident.
The appellant, which I shall call “the MAC”, was the insurer, pursuant to Part 4 of the Motor Vehicles Act 1959, of the defendant’s vehicle. The MAC sought to recover from the defendant, pursuant to s 124A of that Act, amounts which it had paid to two claimants in respect of injuries sustained in a collision which occurred on 26 February 1999. Those two persons were a Mr O’Shaughnessy, who was the driver of the other vehicle involved in the collision, and his passenger Mrs Cheeseman.
Section 124A of the Motor Vehicles Act permits the Compulsory Third Party insurer to recover from an insured driver amounts paid by it in discharge of a liability incurred by the driver where, amongst other things, the driver was driving whilst there was present in his or her blood alcohol exceeding 0.15g/100ml of blood. In this case it was accepted that the defendant’s blood alcohol content exceeded 0.15g/100ml of blood.
The MAC was therefore entitled to recover from the defendant the amount of his liability which it had discharged. To determine the extent of the liability of the defendant to MAC, the defendant’s liability for the collision had to be ascertained. It had been agreed by the parties that the liability of the defendant, as determined by the court, was to be applied to the sum of $40,000. For this purpose the parties did not distinguish between the liability of the defendant to Mr O’Shaughnessy on the one hand and the liability of the defendant to Mrs Cheeseman on the other.
The Magistrate found that each of Mr O’Shaughnessy and the defendant was negligent in a way which caused the collision. He found that Mr O’Shaughnessy should bear 70 per cent of the responsibility for the collision and the defendant the remaining 30 per cent. The MAC appeals against that decision.
The Circumstances of the Collision
The collision occurred on Friday 26 February 1999 at about 6.35 pm. The defendant was driving a van in a southerly direction along Belair Road at Kingswood. Mr O’Shaughnessy was driving his vehicle from the exit driveway of a car park associated with a Chinese restaurant on the eastern side of Belair Road. Belair Road in that area is divided into two lanes for southbound traffic. The defendant was travelling in the eastern, or left of those two lanes.
The case at trial for the MAC was that Mr O’Shaughnessy had brought his car to a halt with the front of it having just protruded into the gutter on the eastern side of Belair Road. The front of the car did not extend beyond a broken yellow line painted on the bitumen of Belair Road, close to and running parallel to the gutter. The MAC’s case was that the defendant’s vehicle had veered to its left and had thereby come into collision with Mr O’Shaughnessy’s vehicle.
A breath analysis was performed on the defendant about one hour after the accident occurred. That gave a blood alcohol reading of 0.174g/100ml of blood.
The defendant’s case, on the other hand, was that he was travelling in a line of traffic in a southerly direction on Belair Road when Mr O’Shaughnessy’s vehicle suddenly moved into his path and collided with the near side of his vehicle.
At the trial the MAC called evidence from Mr O’Shaughnessy and Mrs Cheeseman and tendered some photographs. In a reserved decision, the Magistrate said that he did not accept the evidence of Mr O’Shaughnessy and Mrs Cheeseman. He found that they were mistaken as to the way in which the collision occurred. The Magistrate was impressed with the evidence of the defendant, describing him as “disarmingly frank and candid”. The Magistrate found that the defendant’s vehicle had been travelling appropriately in the eastern southbound lane on Belair Road and that it had not deviated out of that lane towards the left-hand kerb. The Magistrate found that Mr O’Shaughnessy’s vehicle had not stopped, or alternatively if it had stopped, it had moved again whilst making its exit from the car park of the Chinese restaurant. Accordingly Mr O’Shaughnessy was found to have been negligent.
The defendant was also found to be negligent because of his admission that he had not seen Mr O’Shaughnessy’s vehicle prior to impact, that indicating, so the Magistrate found, a failure on his part to keep a proper lookout. Because the defendant did not see Mr O’Shaughnessy’s car he did not brake or take any other action which might have avoided the impact. The Magistrate seems to have accepted that the blood alcohol content of the defendant may have contributed to his want of lookout.
The Magistrate found that Mr O’Shaughnessy’s responsibility exceeded that of the defendant and hence he determined that liability should be apportioned against the defendant for 30 per cent of the agreed amount.
The Appeal
There are three principal grounds of appeal. The MAC initially contended that the errors are such that the judgment of the Magistrate should be set aside and that in lieu thereof judgment should be entered for it. However, in the oral submission Mr James, who appeared for the MAC, accepted that if the appeal was allowed the matter ought to be remitted for a retrial before another Magistrate.
On the evidence the Magistrate had conflicting accounts. It is apparent that his decision was reached having regard to his assessment of the credibility and reliability of the respective witnesses, his consideration of the damage caused to the two vehicles, his consideration of the post-accident positions of the two vehicles, and a view which he formed as to the dynamics which might have led the vehicles to come to be in those positions. On the appeal the MAC complains about the conclusions of the Magistrate on each of those matters.
As was acknowledged by Mr James, an appellate court does not readily interfere with the findings of a trial Magistrate where those findings are based on an assessment of the credibility of witnesses. A finding based, to any substantial degree, on the credibility of a witness will not be interfered with on appeal unless it is established that the trier of fact has failed to use, or has palpably misused, his or her advantage or has acted on evidence which is inconsistent with facts incontrovertibly established by the evidence or where the conclusion is glaringly improbable. I refer in this respect to Devries v Australian National Railway Commission (1993) 177 CLR 472 at 479.
The Assessment of the Witnesses
As I have already noted, the Magistrate accepted the account given by the defendant. That acceptance was based very much upon the Magistrate’s acceptance of the defendant’s evidence. The Magistrate said that he accepted the full force of submissions of the defendant’s counsel, Mr Allen, regarding the defendant’s testimonial presentation.
The Magistrate went on to say, as I have already noted, that he assessed the defendant as being disarmingly frank and candid. Having made that assessment, the Magistrate then went on to give what I take to be some additional reasons for his preference for the defendant’s evidence. The MAC challenged some of the reasoning given by the Magistrate for his preference of the defendant’s evidence but I did not understand Mr James’ submission to be a challenge to the conclusion of the Magistrate that the defendant was disarmingly frank and candid.
MAC submitted that a statement by the Magistrate that the defendant “had treated himself to some beers” was a finding which underestimated the amount of alcohol which the defendant had consumed and was, in any event, an inappropriate manner of expression. Insofar as the submission suggests an underestimation by the Magistrate of the amount of alcohol which had been consumed, I do not accept it. The Magistrate found expressly that in the period of about two hours before the collision the defendant had consumed three pints of light beer and three or four pints of full-strength beer and that the defendant had a blood alcohol content of 0.174g/100 ml of blood. The Magistrate said of the defendant that: “He was a man who was, frankly, drink-driving with a blood alcohol content in excess of three times the legal limit”.
In those circumstances, I do not consider that it can be said that there was an underestimation by the Magistrate of the defendant’s alcohol consumption.
The MAC also complained of a finding by the Magistrate which was to the effect that it was probably because of his consumption of alcohol that the defendant was driving with an excess of caution. It was said that this conclusion was not based on any evidence, was inconsistent with a later finding that the defendant was probably suffering from “a wandering concentration” and was, in any event, implausible. At face value, there seems substance in that submission. However, when one reads the Magistrate’s reasons in context, I do not think that there is an inconsistency. Nor, with one exception, do I consider that the other criticisms are made good. The exception is that I accept the submission that there really was not any evidence to support the view that it was probably because of his consumption of alcohol that the defendant was driving with excessive caution.
However, it seems to me that the comment that the defendant was driving with an excess of caution was made with respect to the defendant’s evidence that he was focusing very much on the vehicle immediately ahead of him in the eastern lane for southbound traffic. The defendant’s evidence appears to imply that he was focusing on that vehicle because he was wary of the possibility of a collision with that vehicle.
There was evidence to support the conclusion that the defendant was focusing very much on the vehicle immediately ahead of him. I consider that, read in context, the critical aspect of the Magistrate’s finding in this respect is that the defendant was watching almost exclusively the vehicle in front of him. The reason for him driving in that manner, whether it be alcohol or something else, was of secondary importance only.
Furthermore, I do not consider that the Magistrate’s statement that the defendant was driving with excessive caution, in that he was focusing on the vehicle in front of him, is necessarily inconsistent with the later observation of the Magistrate, that by the time the accident happened the defendant’s concentration was wandering. Those two statements can, I think, stand together if the latter be understood as a statement by the Magistrate that it was becoming more difficult for the defendant, because of the alcohol he had consumed, to continue driving in a focussed way.
Next the MAC complained of a finding by the Magistrate that the defendant had “paid heavily, financially and emotionally, for his misdeeds on the day” and that he was a man who had nothing “left to lose”. It was submitted that a consideration of the detriment suffered by the defendant as a result of the accident was irrelevant to the conclusions with respect to negligence and the apportionment. That, of course, is correct.
If the Magistrate had reasoned that, by reason of the detriments which the defendant had already suffered, sympathy should be extended to him in the conclusions about negligence or in the apportionment, then he would have been in error. However, read in context, I do not think that is the way that the Magistrate has reasoned. Rather, in his assessment of the credibility of the defendant, the Magistrate appears to have accepted that as a result of his candour and his frankness the defendant had accepted the burdens which his conduct, in particular, his driving with a blood alcohol content of 0.174g/100ml blood, had brought upon him. Notwithstanding those burdens, the Magistrate assessed the defendant as a person who was prepared to accept frankly and without equivocation his own responsibility. That was a relevant matter for the Magistrate to consider in his assessment of the defendant’s evidence. I accept that the Magistrate’s conclusion that the financial burden incurred by the defendant was heavy was not supported by direct evidence. At best the description of the burden as heavy could only indicate an acceptance that the defendant’s liability would be regarded by most in the community as heavy in the way that a personal obligation to discharge a liability for damage to the property of others would be regarded as onerous.
I also accept that the Magistrate’s comment that the defendant was a man who had nothing left to lose and that to that extent he had nothing left to hide appears to be without foundation. The defendant did have something to lose, namely, the amount of the judgment which might have been entered against him in the action before the Magistrate. However, the finding that the defendant was a man who had nothing left to lose was one only of the considerations to which the Magistrate referred in stating his acceptance of the defendant’s evidence.
I do not consider that his error in that respect, nor his use of the word “heavily” in describing the burdens which the defendant had incurred as a result of his conduct on 26 February 1999, detracts overall from his assessment of the defendant.
The Magistrate also gave as a reason for preferring the defendant’s evidence his assessment of the evidence of Mrs Cheeseman. He considered that the evidence of Mrs Cheeseman was largely reconstruction. He gave as one reason for that view his understanding that on the evening of the accident at the Flinders Medical Centre, Mrs Cheeseman, when questioned by a police officer, had said that she remembered nothing of the incident. The Magistrate was mistaken in that understanding.
Although it was put to Mrs Cheeseman in cross-examination that she had told a police officer that she remembered nothing of the accident, she did not accede to the proposition. Mrs Cheeseman said that she could not remember what she had told the police officer. The police officer was not called and there was no other evidence of her conversation with the police officer. The Magistrate was also mistaken in his finding that subsequent to the day of the accident no detailed statement or exposition had been taken from Mrs Cheeseman. There was no evidence to support that conclusion at all.
To some extent these errors detract from the Magistrate’s conclusion that the evidence of Mrs Cheeseman was substantially reconstructed. However, the Magistrates observed the way in which Mrs Cheeseman gave evidence. My reading of her evidence suggests that a conclusion that there was an element of reconstruction in her evidence was open. In some respects it does seem remarkable, as Mr Allen pointed out, that Mrs Cheeseman could remember in quite some detail one important aspect of the events leading to the collision and that aspect only.
Mrs Cheeseman’s evidence was to the effect that Mr O’Shaughnessy’s vehicle had come to a halt, protruding in only a minor way onto the roadway of Belair Road, and that having come to a halt remained stationary thereafter until the point of impact. It does seem a little unusual that Mrs Cheeseman could not remember other aspects of the course of travel of the vehicle prior to the impact or, for that matter, immediately after the impact. Mrs Cheeseman did suffer an injury in the accident but I note that she described that injury in the evidence as a whiplash injury.
So I summarise the position with respect to the Magistrate’s assessment of Mrs Cheeseman’s evidence in this way: her evidence was found to have been reconstructed. One reason, indeed, an important reason, for that conclusion by the Magistrate is shown to have been an error on the Magistrate’s part but there was other evidence which justified the conclusion that the evidence was reconstructed.
Given that the error with respect to the previous statements of Mrs Cheeseman was not the sole reason for the Magistrate’s views about her evidence, I am not prepared to hold that his rejection of her evidence on this account was wholly wrong.
The Magistrate also reasoned that Mr O’Shaughnessy and Mrs Cheeseman had a motive to please the MAC, the implication being that they were prepared to adapt their evidence in the trial to suit the interests of the MAC. I regard reasoning of this kind in the circumstances of this case to be quite unsafe. In any event, it was not suggested either to Mr O’Shaughnessy or to Mrs Cheeseman that they were adapting their evidence in some way because of their perception of the interests of MAC or because of any desire to vindicate the position of Mr O’Shaughnessy.
In the scheme of things however, it does not seem to me that the Magistrate has attached much significance to his suggestion that Mr O’Shaughnessy and Mrs Cheeseman may have had a motive for, consciously or unconsciously, adapting their evidence.
The Magistrate also reasoned from the damage to the vehicle, the post-impact positions of the vehicles and his analysis of the probable dynamics of the collision, that the defendant’s account was more plausible than that of Mr O’Shaughnessy and Mrs Cheeseman.
The Damage to the Vehicles
The Magistrate accepted that the damage to the defendant’s vehicle was on its left-hand side commencing at about the left-hand front wheel and extending to its rear. He also accepted the defendant’s evidence that there was no damage to the front of the van. The Magistrate considered that if Mr O’Shaughnessy’s version was correct, it is likely that there would have been damage to the front of the defendant’s vehicle. Furthermore, the fact that there was damage to the left-hand side of the defendant’s vehicle was considered by the Magistrate to be more consistent with Mr O’Shaughnessy’s vehicle being in motion when it made contact with the defendant’s vehicle.
The appellant submits that in the circumstances of this case the location of the damage was of limited assistance in resolving the dispute between the respective accounts of plaintiff and defendant. I think there is force in that submission. As described by the Magistrate, the damage to the defendant’s vehicle was as consistent with it sideswiping Mr O’Shaughnessy’s vehicle, which was the appellant’s case, as it was with the defendant’s case. If this had been the only matter relied upon by the Magistrate, I consider that it would have undermined his decision, but as noted above, it seems that the fundamental matter upon which the Magistrate relied was his assessment of the defendant and his evidence.
Post Impact Positions and Dynamics of Accident

As to the post-impact positions and what I have called the dynamics of the accident, the defendant’s van came to a rest after the collision on its right-hand side, occupying most of the right-hand southbound lane on Belair Road further south from its exit from the car park. The Magistrate reasoned that that rest position was more consistent with the two vehicles imparting respective glancing blows to each other (as they would if it was Mr O’Shaughnessy’s vehicle which had moved into the path of the defendant’s vehicle, rather than the defendant’s vehicle striking Mr O’Shaughnessy’s vehicle whilst it was stationary and protruding only slightly on to the road). Furthermore, Mr O’Shaughnessy’s vehicle came to rest facing in a south-easterly direction and south of the point of impact. The Magistrate reasoned that that rest position was consistent with Mr O’Shaughnessy’s vehicle having had some westbound momentum at the point of impact, rather than being shunted while stationary.
It was submitted that this reasoning was unsafe, particularly in the absence of more detailed evidence about which vehicle it was which struck a Stobie pole south of the point of impact and the manner in which that vehicle had struck the Stobie pole. I think there is force in that submission. Vehicles which are involved in motor vehicle accidents, particularly when both are moving at the point of impact, can move in unpredictable ways, and that is even more obvious when one of those vehicles strikes a stationary object such as a Stobie pole. The difference in the behaviour of a vehicle which has been shunted on the one hand and one which has been struck a glancing blow on the other, is something which a Magistrate could consider, often without the assistance of expert evidence. In some respects that involves matters of common experience, but when one adds in the influence of impact with a stationary object, it becomes much more difficult, in my opinion, for one to reason from the post-impact positions of the vehicles the course which either took post-impact as well as their positions pre-impact and the manner in which they struck one another. Unlike the Magistrate, I would not hold that the post-impact positions of the vehicles provided any real assistance in this case to determining what were the positions of the vehicles or their movement at the time of impact.
In short, insofar as the Magistrate has sought to rely upon inferences from the damage to the vehicles and inferences from their post-collision positions, I consider that the Magistrate’s reasoning is unsafe. This makes the Magistrate’s assessment of the defendant’s evidence critical. I have already referred to this.
Whilst I consider that some of the criticisms which Mr James has advanced have been made good, that is to say some of the criticisms of individual matters which the Magistrate mentioned giving rise to his preference for the defendant’s evidence have been made good, there remains the conclusion of the Magistrate that he accepted the full force of Mr Allen’s submissions regarding the defendant’s testimonial presentation, which, I take it to mean, was an acceptance of the defendant as a credible witness. In addition, there is the Magistrate’s conclusion that the defendant was disarmingly frank and candid. Those conclusions, and the findings of fact based on them, do not seem to me to be inconsistent with other evidence incontrovertibly established, nor do those conclusions or findings seem to me to be glaringly improbable. In a case like this, it was open to the Magistrate to accept the evidence of one or other of the parties and in accordance with the principles of appellate review to which I have already referred, I do not consider that a basis for interference with the Magistrate’s acceptance of the defendant has been shown.
Conclusion
The Magistrate was in a position of considerable advantage given that he saw and heard the witnesses. I do not consider that he has misused that advantage. Whilst some of the grounds of appeal have been made out, I do not consider that the matter upon which the Magistrate based his decision, namely his acceptance of the defendant’s evidence, has been impugned successfully.
For these reasons the appeal should be dismissed.
The order of the court is:
1. The appeal is dismissed.
2.The appellant is to pay the respondent’s costs of and incidental to the appeal.