O'Neil v Troughton No. Scciv-03-1117

O’NEIL v TROUGHTON
[2004] SASC 27
Magistrates Appeal: Civil

MULLIGHAN J The appellant brought an action in the Magistrates Court claiming damages against the respondent in the sum of $7,198.28, being the cost of repairs to his Holden Commodore motor vehicle, and a towing fee, which was damaged in a road accident on 20 July 2002 when it came into collision with a Nissan motor vehicle driven by the respondent at Unley. The respondent counterclaimed the sum $8,258.29, being the cost of repairs to his motor vehicle.
At about 3.20 pm on the day of the accident the appellant was driving his motor vehicle south along Unley Road. The collision between the two vehicles occurred at the junction of Unley Road and Culvert Street. The appellant’s vehicle had completed overtaking another vehicle which had also been travelling south along Unley Road and commenced to turn east into Culvert Street. The respondent’s vehicle entered the junction and the collision occurred.
The junction is not controlled by traffic lights. The eastern carriageway of Unley Road upon which the appellant was travelling is comprised of two lanes for vehicular traffic and a bicycle lane adjacent to the kerb. The speed limit at the relevant time was 60 kph. Culvert Street is on the eastern side of Unley Road and with one lane for each direction of traffic. Traffic entering Unley Road from Culvert Street is obliged to give way to both southbound and northbound traffic on Unley Road: see Rule 67 of the Australian Road Rules.
The appellant gave evidence. He told the learned Magistrate that he entered Unley Road at the intersection of Unley Road and Greenhill Road and drove in a southerly direction in the outside lane on the eastern carriageway until the collision. He said that as he approached the junction where the accident occurred, he saw a four-wheel drive vehicle several car lengths in front of him. That vehicle indicated a turn to the left into Culvert Street and slowed almost to stationary. The appellant estimated the speed of his own vehicle at between 50 kph and 55 kph. He said that he did not see the respondent’s vehicle until the point of impact as the four-wheel drive vehicle had obscured his view. He was adamant that he remained in the outside lane. Upon the impact, he veered to his left and sideswiped a motor vehicle parked at the southern side of the junction. He swung his vehicle back to his right. In doing so he over-corrected and then sideswiped another vehicle beyond the junction. That vehicle is owned by Mr McBain. He has claimed damages, being the cost of repairs to his vehicle, in the sum of $3,592.53. The learned Magistrate entered judgment in his favour for the amount of his claim and apportioned responsibility between the appellant and the respondent in the proportions which I mention shortly. He did not participate in the appeal but I must add that Mr McBain did not witness the collision. No claim has been made by the owner of the first vehicle sideswiped by the appellant’s vehicle and that person did not give evidence at the trial.
The respondent also gave evidence. He told the learned Magistrate that he had a companion in his motor vehicle, Ms Reynolds, as he travelled along Culvert Street towards Unley Road. He said that he stopped his vehicle in line with the eastern kerb of Unley Road and waited. Traffic was approaching the junction from the south along Unley Road. He said that a silver sedan motor vehicle turned left into Culvert Street and he then moved out into the eastern carriageway of Unley Road to obtain a view of oncoming traffic from the north and stopped. The collision then occurred when the appellant’s vehicle struck the front of his vehicle. He saw the appellant’s vehicle sideswipe the other two vehicles which I have mentioned. He told the learned Magistrate that his vehicle did not move after he stopped on Unley Road and before the collision.
According to the respondent, the vehicle which turned into Culvert Street shortly before the collision was a silver sedan and not a four-wheel drive vehicle. The appellant maintained in cross-examination that the vehicle was as he described. The respondent said that he saw the appellant’s vehicle as it approached the junction. It was behind the silver vehicle. As that vehicle turned left into Culvert Street, the appellant’s vehicle moved from behind it into the outside lane without indicating. The respondent then moved out onto Unley Road and stopped, and the appellant’s vehicle then collided with the front of his vehicle. He estimated the speed of the appellant’s vehicle as in the vicinity of 70 kph to 80 kph. The respondent maintained in his evidence that the turning vehicle was not a four-wheel drive vehicle and that the appellant’s vehicle was not travelling in the outside lane on Unley Road except for the brief period before the collision.
The respondent said that when he moved into the eastern carriageway of Unley Road the front of his vehicle would have been a little beyond the width of parked vehicles at the eastern kerb. It may be accepted that on his version his vehicle had progressed a significant way into the eastern lane of Unley Road. He also said that when he first saw the appellant’s vehicle it was passing vehicles parked at the eastern kerb of Unley Road to the north of the junction. The respondent told the learned Magistrate that he lost sight of the appellant’s vehicle when the silver vehicle reached the junction. At that time he said the appellant’s vehicle was three quarters of the way into the right hand lane. He told the learned Magistrate that he assumed that the appellant’s vehicle would remain in that lane.
Ms Reynolds also gave evidence which accorded in substance with the evidence of the respondent. She also said that she saw the appellant’s vehicle in the left lane behind the silver vehicle. She said she was certain that the appellant’s vehicle was not in the right lane when approaching the junction.
The learned Magistrate was confronted with conflicting versions of the circumstances of the collision. He said that he could not resolve the issues upon his observations of the witnesses, all of whom gave convincing evidence and gave no cause for doubt in cross-examination. He found both versions equally plausible but said that he found difficulty in the appellant’s version as to how his vehicle came into collision with the two stationary vehicles after the collision with the respondent’s vehicle. He went on to say that in the absence of expert evidence he was left to surmise the likelihood of the appellant’s version. The learned Magistrate then attempted to reconstruct what had occurred. He said:
“If the plaintiff was in the right hand lane when the collision took place I think I can assume that the defendant’s vehicle would have been at an angle to the front of the plaintiff’s car. In the circumstances, I would have expected that the damage to the defendant’s car would have been either on the left hand side or on the right hand side depending upon where the vehicles were at the time. I also would have thought that a driver in the plaintiff’s position would have reacted by swerving to the right rather than the left. A swerve to the left would only have been possible after the full length of the plaintiff’s vehicle had cleared that of the defendant. I also find it difficult to believe that after the impact with the Honda the plaintiff’s vehicle has swerved to the right, overcorrected and then come back to the left to hit the Lexus. The Honda and the Lexus were not separated by any other vehicle.”
He then considered the damage to the appellant’s vehicle and the respondent’s vehicle as depicted in photographs admitted into evidence. Photographs of the damage to the appellant’s vehicle show extensive damage along almost the whole length of the near side, which the learned Magistrate said is consistent with the vehicle retaining its course when the vehicles were together. The photographs of the respondent’s vehicle show extensive damage to the front of the vehicle ahead of the front wheels, which the learned Magistrate concluded, is consistent with it remaining at a right angle to Unley Road.
Having considered the evidence, including the photographs, the learned Magistrate accepted the respondent’s version of the circumstances of the collision, including that the vehicle turning into Culvert Street was a silver motor car and not a four wheel drive vehicle. He found that the appellant did not see the respondent’s vehicle until the silver vehicle had completed its turn. The appellant had moved into the right lane on Unley Road to pass that vehicle and then returned to the left lane and the collision occurred as the respondent’s vehicle had protruded into the left lane. He was not prepared to find that the appellant was driving at a speed in excess of the speed limit.
The learned Magistrate found that although the appellant was entitled to assume that the left lane of Unley Road was clear when he had passed the turning vehicle, he did not keep a proper look out and was guilty of negligence. He found negligence on the part of the respondent in driving his vehicle onto Unley Road and into the path of oncoming traffic. He did not make a finding as to whether the respondent’s vehicle was moving or stationary at the time of the collision. The learned Magistrate apportioned responsibility for the collision at 40 per cent against the appellant and 60 per cent against the respondent and entered judgment accordingly as to $4,318.97 in favour of the appellant and $3,099.24 with costs for the respondent. He entered judgment for Mr McBain, inclusive of costs, as to $1,549.02 against the appellant and $2,323.53 against the respondent.
The grounds of appeal are that the learned Trial Judge erred in finding negligence on the part of the appellant and, in the alternative, the apportionment of responsibility for the collision should have been greater against the respondent.
The first contention of the appellant is that the circumstances of the collision could not have been as found by the learned Magistrate. There was no evidence as to the width of Culvert Street, but photographs admitted into evidence indicate that it is not a wide street. The appellant’s vehicle was passing the turning vehicle as it was making the turn into the northern lane of Culvert Street. The finding of the learned Magistrate is that the appellant’s vehicle then returned to the left lane of Unley Road and struck the respondent’s vehicle.
I accept the submission that, even if travelling at a moderate speed, the appellant’s vehicle could not have returned to the left lane of Unley Road even substantially in the distance between the point of passing the turning vehicle and the southern lane of Culvert Street. That distance could have only been a few metres at the most. It is more likely that the respondent’s vehicle had entered Unley Road to a much greater extent than he and Ms Reynolds acknowledged. As has been mentioned, the respondent said that his vehicle had protruded about level with the offside of the vehicles parked on the eastern side of Unley Road. According to Ms Reynolds, the appellant’s vehicle had protruded a little less than half way into the eastern carriageway.
I mention the use by the learned Trial Judge of the photographs depicting damage to the appellant’s vehicle and the respondent’s vehicle. The location of damage to the appellant’s vehicle is of little significance as that vehicle side-swiped the other two vehicles. Also, the location of the damage to the vehicles of the appellant and the respondent does not assist in determining the place on Unley Road where the collision occurred.
Next, I mention the observations of the learned Magistrate that he had not had the benefit of expert evidence. That is strictly correct, but he was informed that the appellant and the respondent had jointly engaged an investigator to provide an expert opinion as to the apparent cause of the collision, which I assume means the apparent circumstances of the collision. The learned Magistrate was informed that the investigator was unable to form any view as to which of the respective versions of the appellant and the respondent was more likely. The appellant complains that the learned Magistrate then attempted to undertake the type of analysis which the investigation could not make and thereby fell into error.
I do not think that complaint is justified. The learned Magistrate considered the evidence and reached his decision principally upon the location of the damage to the vehicles. Whilst it is my view that he did not reach the correct conclusion, his approach was appropriate.
Without question, the respondent was guilty of negligence which contributed to the cause of the collision. He saw the appellant’s vehicle well before the collision. He entered the junction when it was not safe to do so and when he knew that the appellant’s vehicle was about to enter the junction.
Was the appellant guilty of negligence? He entered the junction when he could not see into Culvert Street or into that part of the junction into which the respondent’s vehicle had protruded. He was either in the right lane or entered it to move around the turning vehicle as the learned Magistrate found. In either event he was driving in accordance with the law. There has been no finding that he did not indicate a move from one lane to the other or that he was driving at an excessive speed. It was his obligation to keep a proper look out and to drive defensively. As he could not see the respondent’s vehicle, he should have driven in such a manner and at such a speed to avoid the respondent’s vehicle if it wrongly entered the junction. He did not do so. I do not mean to suggest that a person in the position of the appellant must anticipate a sudden disobedience of the rules of the road by a driver entering a junction suddenly and at speed. However, there is no evidence to suggest that the manner of driving of the respondent could be described in that way. The appellant did not anticipate that a driver of a vehicle might enter the junction from Culvert Street and cause a dangerous situation.
I think it is likely that the respondent’s vehicle protruded a considerable way into the left lane of Unley Road at a time when the respondent knew that the appellant was about to enter the junction. He was negligent in doing so and the degree of his responsibility for the collision must be much greater than as apportioned by the learned Magistrate.
In my view, the negligence of the appellant contributed to the collision to a minor degree. The respondent’s course of driving created a dangerous situation. It is difficult to see why he would enter the junction to obtain a better view when he knew the appellant’s vehicle was approaching. It is probable that having passed the turning vehicle, the appellant drove his vehicle across the front of the respondent’s vehicle which was at about the eastern side of the outside lane. His lookout was defective and he did not veer further to his right to avoid the collision. For that reason he was also guilty of negligence. I do not think anything can be made of the direction of travel of the appellant’s vehicle after the collision and the collision with the other two vehicles as it is likely that the collision with the respondent’s vehicle caused the appellant’s vehicle to behave erratically.
I reject the contention that the appellant was not guilty of negligence and accept the submission that the learned Magistrate erred in the apportionment between the appellant and the respondent of responsibility for the collision. I acknowledge that if all that is involved is a difference of opinion, then an appeal court will not interfere with an apportionment: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. In the present case I think that the learned Magistrate’s apportionment is outside the range reasonably open on the evidence. The respondent created a dangerous situation which was the major cause of the collision. It is necessary for me to apportion responsibility for the collision.
I allow the appeal. The correct apportionment in the circumstances is 15 per cent against the appellant and 85 per cent against the respondent. I vary the judgments entered by the learned Magistrate so that the appellant have judgment against the respondent on his claim for $6,118.53 and the respondent have judgment against the appellant on his counterclaim for $1,238.74.
I shall hear the parties as to the form of the judgment which should be entered with respect to the loss sustained by Mr McBain and as to costs.

[2004] SASC 27

30 January 2004