Ng v Ricciuto - [2011] SASC 211

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
NG v RICCIUTO
[2011] SASC 211
Judgment of The Honourable Justice Kourakis
8 December 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - TURNING ACROSS TRAFFIC
Appeal against Magistrate's findings as to liability and apportionment of responsibility for damage resulting from a motor vehicle collision - Magistrate apportioned responsiblity at 70 per cent to the respondent (then defendant) and 30 per cent to the appellant (then plaintiff) - challenge to intermediate finding of fact by Magistrate as to the position of appellant's vehicle leading up to the collision - Magistrate preferred testimony of respondent and her passenger - whether error in Magistrate's factual findings - whether Magistrate apportioned responsibility appropriately.
Held - appeal allowed on apportionment of reponsibility only - apportionment adjusted at 85 per cent to the respondent and 15 per cent to the appellant - no error identified in the Magistrate's reasoning and findings as to primary facts.
Scholten v Bithell (1988) 147 LSJS 228; Warren v Coombes (1979) 142 CLR 531, considered.

NG v RICCIUTO
[2011] SASC 211

Kourakis J. The Issue: The appellant and the respondent are owners of motor vehicles which were involved in a collision on Grange Road, Findon, at about the position of the entrance from that road into a supermarket car park. This is an appeal from the apportionment of responsibility for the resulting damage made by the Magistrates Court on a claim for property damage brought by the appellant as plaintiff.
The collision occurred at about 7:30 pm on Thursday 4 November 2010. Immediately before the collision the appellant’s vehicle was being driven by Ms Ng towards the city in an easterly direction along Grange Road. The respondent, Ms Ricciuto, was driving her vehicle out of the supermarket car park which is on the northern side of Grange Road. Ms Ricciuto intended to execute a right hand turn, moving first across the carriageway along which Ms Ng was driving and then into the west bound carriageway of Grange Road to travel towards the beach.
The Magistrate found that Ms Ricciuto was primarily culpable for the collision but found Ms Ng to bear 30 per cent of the responsibility. The appellant appeals the finding made against her and contends, first, that Ms Ricciuto was wholly responsible for the collision, and in the alternative that she was more responsible than the Magistrate found.
In summary, Ms Ricciuto and her passenger, Ms Coutsoucos, testified that there was a vehicle in the left hand lane of the east bound carriageway of Grange Road which had slowed to turn into the supermarket car park (the turning vehicle) just before Ms Ricciuto drove her vehicle out onto Grange Road. Both Ms Ricciuto and Ms Coutsoucos testified that Ms Ng’s vehicle was straddling the two lanes of the east bound carriageway at the time of the collision. Ms Ng, however, testified that she had been travelling in the right hand lane and had not moved to overtake a vehicle turning into the car park. The Magistrate’s apportionment was founded on a finding of primary fact that shortly before the collision, Ms Ng had commenced to move from the left hand lane of the east bound carriageway into the right hand lane to overtake and pass the turning vehicle.
The appellant has not demonstrated to me any reason to interfere with the finding of primary fact which was squarely based on an acceptance of the oral testimony of Ms Ng and Ms Coutsoucos. The Magistrate clearly preferred their evidence to the evidence of Ms Ng.
However, on the basis of the primary facts found by the Magistrate I would apportion responsibility differently. I accept that Ms Ng should have taken precautionary measures and that those measures would have avoided the collision. In my view her culpability is, however, materially less than that found by the Magistrate. Ms Ng’s responsibility for not driving as defensively as she might have should be more strongly differentiated from Ms Ricciuto’s culpability in moving out of the car park onto a busy major road when it was not safe to do so. I allow the appeal for the purposes of apportioning responsibility 85 per cent against Ms Ricciuto. I elaborate my reasons.
The evidence
Ms Ricciuto said that she was “just creeping out” of the car park travelling at about 5 kms per hour when she saw Ms Ng’s vehicle. Her evidence was supported by her passenger Ms Coutsoucos who described the vehicle as “just rolling forward” and going “not very fast.” Ms Ricciuto gave evidence that when she first saw the vehicle driven by Ms Ng it was “more in the right lane” but “partially in the left lane.” Ms Coutsoucos also described the vehicle driven by Ms Ng straddling the lanes but testified that Ms Ng’s vehicle “was more in the left lane but kind of in the middle.”
Ms Ng testified that she generally preferred to drive in the right hand lane of Grange Road and that on the day of the collision she had travelled in that lane from the time she entered Grange Road from Frederick Road. Ms Ng’s evidence was that she was travelling at 60 kms per hour before the collision. When asked about vehicles in front of her she answered “there might have been like a couple of cars but nothing like right near me or anything, like the road wasn’t empty, like there other cars.”
According to Ms Ng, the accident happened when Ms Ricciuto “suddenly sped out and came out and she wanted to turn into the opposite lane on Grange Road.” Ms Ng testified that when she first saw Ms Ricciuto’s vehicle it was not moving. Seconds later, when she realised that it was moving, she immediately braked and turned a little to the right, towards the median strip.
The Magistrate accepted the evidence of Ms Ricciuto and Ms Coutsoucos and found that Ms Ricciuto’s vehicle was travelling “quite slowly” as she entered Grange Road. The Magistrate described Ms Ricciuto’s vehicle as “edging out.” The Magistrate had the obvious advantage of assessing the witnesses as they gave evidence. There is no objective evidence which makes the accounts of Ms Ricciuto and Ms Coutsoucos manifestly improbable or even less probable than the account of Ms Ng. Indeed, the relatively light damage done to the vehicles, if anything, supports the Magistrate’s finding.
The Magistrate accepted that Ms Ng might have a preference to travel in the right hand lane but did not accept that that would have been her invariable practice. The Magistrate accepted the evidence of Ms Ricciuto and Ms Coutsoucos as to the point of collision. The Magistrate was satisfied that Ms Ng’s vehicle was not “fully in the right hand lane before the impact.” The Magistrate inferred from that evidence that Ms Ng “was in the process of moving from the left lane to the right land when [Ms Ricciuto] first saw her.” Plainly enough, the Magistrates finding is supported by the evidence of Ms Ricciuto and Ms Coutsoucos. Again, the Magistrate had the benefit of assessing their testimony in the witness box. The difference between Ms Coutsoucos and Ms Ricciuto about the extent to which the vehicle was in one lane or the other is not substantial and might, in any event, be explained by the angle of their vision or the precise time when they first saw Ms Ng’s vehicle. There is no objective evidence which renders the Magistrates finding improbable.
The appellant’s primary challenge to the Magistrate’s conclusion, that Ms Ng’s vehicle was straddling lanes immediately before the collision, is that it was influenced by an intermediate finding of fact which was unsupported by, and overwhelmingly against, the weight of the evidence. The intermediate finding of fact which is challenged is the Magistrate’s finding that Ms Ricciuto did not see Ms Ng’s vehicle because Ms Ng’s vehicle was travelling behind the turning vehicle. The Magistrate found that the turning vehicle had “blocked her view and that she was edging out looking to see if the road was clear.” I will refer to that finding as the obstruction finding. In a subsequent passage, the Magistrate again stated that she was satisfied that Ms Ricciuto did not see the plaintiff’s vehicle until after she had commenced to drive out of the car park because Ms Ng had been behind the turning vehicle.
The appellant contends that the obstruction finding substantially influenced the Magistrate’s decision to accept Ms Ricciuto and Ms Coutsoucos on the position of Ms Ng’s vehicle at the point of collision, but is contrary to the express evidence of Ms Ricciuto. In cross-examination, Ms Ricciuto agreed that the turning vehicle was not the reason she was moving slowly or creeping out of the car park. She testified that the turning vehicle was by then about to enter the car park and she was edging out because she would not speed out of a car park in any circumstance. Ms Ricciuto was asked in cross-examination:
QDid the car turning left into the car park impede your view to the right at all?
ANo, I didn’t think so.
Initially Ms Ricciuto suggested that the turning vehicle hadn’t finished turning into the car park when she started edging out of the car park. However, in answer to closer questioning, Ms Ricciuto testified the rear of the turning vehicle was at about of the position of the kerb when she started to move out. Ms Ricciuto then agreed that at that time the vehicle was not blocking her view to the right. Ms Ricciuto frankly agreed that she just didn’t see the vehicle driven by Ms Ng as she pulled out.
Ms Ricciuto’s answers in cross-examination must be understood in the context of her evidence-in-chief. Ms Ricciuto testified that before she moved out onto Grange Road she looked both ways to see if the road was clear, and saw the turning vehicle but no other vehicles. She started “creeping out of the exit”, and only then saw Ms Ng’s vehicle. Ms Ricciuto testified that at that she time was travelling at around 5 kms per hour.
In my view, the passages in cross-examination to which I have referred are not inconsistent with the Magistrate’s finding. Indeed, Ms Ricciuto’s evidence as a whole fits comfortably with that finding. Plainly enough, Ms Ricciuto’s lookout was defective because she did not see the vehicle driven by Ms Ng until the point of collision. On the face of her evidence-in-chief, it is apparent that when she looked to her right, that is to the west, she saw the turning vehicle approaching in the left hand lane of Grange Road. However, by the time she had looked to the left and had commenced to move, the turning vehicle was no longer obstructing her view to the west but she did not see the vehicle driven by Ms Ng.
The obstruction finding is therefore not inconsistent with the evidence even though it is not, perhaps, a complete account of it. There was plainly a time when the turning vehicle obstructed Ms Ricciuto’s view even though Ms Ricciuto would have seen Ms Ng’s vehicle, if she had looked, at the moment that she moved out of the car park. I therefore reject that part of the appellant’s syllogism which posits that the obstruction finding is inconsistent with Ms Ricciuto’s evidence.
Nor do I accept the proposition that the obstruction finding influenced the finding that Ms Ng was straddling lanes. No part of the Magistrate’s reasons suggests that the obstruction finding played any part in her acceptance of Ms Ricciuto and Ms Coutsoucos’ testimony about the position of Ms Ng’s vehicle on impact. I accept that the Magistrate’s view about the evidence was capable, circumstantially, of affecting her choice of which of the accounts to accept. I also accept that the turning vehicle might also account for Ms Ricciuto’s failure to see Ms Ng’s vehicle on the hypothesis that Ms Ng was driving in the right hand lane. However, to my mind, that failure is better explained if Ms Ng was initially travelling behind the turning vehicle in the left hand lane having regard to the scope for obstruction and the sequence of events.
Be that as it may, the Magistrate’s reasoning shows that her acceptance of the accounts of Ms Ricciuto and Ms Coutsoucos was based on her favourable assessment of their testimony and her adverse assessment of Ms Ng’s testimony. The Magistrate thought Ms Ricciuto “gave clear evidence” and that “[h]er account was not undermined by cross-examination.” The Magistrate found her to be an honest witness and found no indication of collusion with her passenger Ms Coutsoucos. The Magistrate was not as favourably impressed by Ms Coutsoucos but thought that her account was not undermined by cross-examination, that she was responsive to questions and did not reconstruct events.
On the other hand, the Magistrate was not impressed by the absence of detail of the collision in Ms Ng’s evidence. The Magistrate described her evidence as vague. The Magistrate was also not impressed with Ms Ng’s vagueness about the presence of other vehicles on the road. Nor was the Magistrate impressed by Ms Ng’s insistence about the strength of her habit to travel only in the right hand lane of Grange Road.
There is no objective evidence which makes the Magistrate’s findings glaringly improbable or inconsistent with incontrovertible facts and it has not been demonstrated that she has misused her advantage as the trial court by any erroneous reasoning.
I proceed to consider the question of apportionment on the finding of primary fact that Ms Ng’s vehicle was straddling lanes, and by inference that she had been travelling behind the turning vehicle. The apportionment of responsibility on the facts as found is an evaluative judgment formed on inference drawn from those facts. I am in as good a position as the Magistrate to make that judgement.[1] On those facts, Ms Ng’s testimonial admission to have seen Ms Ricciuto’s vehicle stationary at the exit of the car park several seconds before it commenced to move out is significant. It is also important that Ms Ng testified that her speed at the time of the first sighting was 60 kms per hour. On those admissions it appears that Ms Ng, knowing that she was approaching a car park from which a vehicle was waiting to exit, moved out from behind the turning vehicle without taking any defensive measures. Ms Ng ought to have appreciated the real possibility that Ms Ricciuto might move out in front of her because her vehicle may have been obscured, at least for part of the time, during which Ms Ricciuto could be expected to exercise her lookout. Moreover, on Ms Ng’s evidence there were several seconds in which she took her attention away from Ms Ricciuto’s vehicle as she concentrated on changing lanes. Ms Ng did not slow her vehicle or cover her brakes. The fact that Ms Ng had not completed the move into the right hand lane also suggests that if she had been more attentive to the possibility of Ms Ricciuto exiting, she may have been able to avoid the accident by moving further into the right hand lane.
[1] (1979) 142 CLR 531.
If Ms Ng had been driving in the right hand lane, no defensive action other than keeping Ms Ricciuto’s vehicle in view would have been required of her as she approached the car park exit. The risk that the turning vehicle had obscured her approach would have been less. Her attention to Ms Ricciuto’s vehicle, and any movement it might make, would not have been interrupted by changing lanes. If her vehicle had been in the right hand lane she would have had more time to take steps to avoid the collision before Ms Ricciuto reached the right hand lane.
It is the substantial difference between the risk assessments applicable to travelling in the different lanes which enlivened the duty to take the defensive measures which I have identified. In this respect I refer to Scholten v Bithell,[2] where an analogous duty was imposed on a driver overtaking banked up vehicles in a traffic jam who collided with a vehicle turning across the line of traffic through a break left by other considerate motorists.
[2] (1988) 147 LSJS 228.
However, Ms Ng’s culpability for failing to take what might be considered the “best practice” defensive measures I have identified is quite low relative to the grossly inadequate lookout of Ms Ricciuto, before she moved onto a major road. I would apportion only 15 per cent of the responsibility for the collision against Ms Ng.
Conclusion
I allow the appeal. I set aside the apportionment of responsibility fixed by the Magistrates Court. I apportion instead 85 per cent of the responsibility to the respondent (defendant) and 15 per cent to the appellant (plaintiff).