Reddy v Bhosale (Civil Dispute)
[2022] ACAT 31
•11 April 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
REDDY v BHOSALE (Civil Dispute) [2022] ACAT 31
XD 914/2021
Catchwords: CIVIL DISPUTE – motor vehicle accident – applicant’s vehicle impacted by that of respondent – Road Transport (Road Rules) Regulation 2017 – duty of care of road users – whether the applicant was lawfully on the road – liability lies entirely with respondent
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 17, 18
Civil Law (Wrongs) Act 2002, ss 40, 41, 42, 47, 94
Legislation Act 2001 ss 133, 190
Road Transport (Safety and Traffic Management) Act 1999 s 18
Subordinate
Legislation cited: Road Transport (Road Rules) Regulation 2017 ss 126
Road Transport (Vehicle Registration) Regulation 2000 s 86
Cases cited:Ruddick v Hseih [2022] ACAT 14
Tribunal:Senior Member M Hyman
Date of Orders: 11 April 2022
Date of Reasons for Decision: 11 April 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 914/2021
BETWEEN:
MUCHARLA VINAY KUMAR REDDY
Applicant
AND:
YASH SANJAY BHOSALE
Respondent
TRIBUNAL:Senior Member M Hyman
DATE:11 April 2022
ORDER
The Tribunal orders that:
The respondent is liable for the damage to the applicant’s motor vehicle.
By 19 April 2022 the parties may make submissions on the quantum of damages to be paid to the applicant by the respondent.
………………………………..
Senior Member M Hyman
REASONS FOR DECISION
Introduction
This matter concerns a motor vehicle accident on 19 September 2021. The respondent and the applicant were each driving a vehicle, proceeding in the same direction, with the applicant in the front car and the respondent behind. The applicant found a car stopped ahead of him and came to an abrupt halt. The respondent braked but was unable to stop in time and hit the applicant’s car from behind. The applicant has applied to the Tribunal seeking $12,924.48 in damages for the repairs to his car ($12,759.48) and the Tribunal filing fee ($165).
The matter came before me on 25 January 2022. The parties appeared in person and gave evidence. Neither called any witnesses. The papers before me consisted of an application by Mr Reddy with attachments comprising quotes for car repairs, photographs of the cars involved and a permit for driving an unregistered vehicle; and a response by Mr Bhosale, together with record of his purchase of a replacement vehicle.
The legislative framework
Under the ACT Civil and Administrative Tribunal Act 2008, a person may make an application to the tribunal in respect of a matter relating to one or more various kinds of disputes, including a negligence matter,[1] provided the amount in dispute is not more than $25,000.[2]
[1] ACT Civil and Administrative Tribunal Act 2008, sections 16 and 17
[2] ACT Civil and Administrative Tribunal Act 2008, section 18
The rules of the road in the ACT are set by the Road Transport (Road Rules) Regulation 2017 (the Road Rules Regulation), a regulation made under Part 8 of the Road Transport (Safety and Traffic Management) Act 1999. Regulation 126 of the Road Rules Regulation reads as follows:
Keeping safe distance behind vehicle
A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
Maximum penalty: 20 penalty units.
The Road Rules Regulation also establishes rules affecting other aspects of the use of motor vehicles on public roads, including on matters such as where a vehicle may lawfully stop.
The Civil Law (Wrongs) Act 2002 (the CLW Act) includes in Chapter 4 a number of provisions relating to negligence. Section 41 provides that the provisions of the Chapter apply to any claim for damages for harm arising from negligence, whether arising in tort, contract, under statute, or otherwise. Section 40 defines ‘harm’ to include damage to property and economic loss; section 42 provides that where a claim is brought, the standard of care required of the defendant is that of a reasonable person in the defendant’s circumstances at the time, in possession of the information that the person had, or ought reasonably to have had. The CLW Act also provides for a defendant to reduce or escape liability by establishing contributory negligence by the claimant.[3]
The facts
[3] Civil Law (Wrongs) Act 2002 section 47
In general, the facts of the accident are not contested or at issue. On the afternoon of Sunday 19 September 2021 Mr Reddy was driving to work on John Gorton Drive, in the Molonglo area, adjacent to the suburbs of Wright and Denman Prospect, heading south to south-east; Mr Bhosale was on the same road, behind him and heading in the same direction. Mr Bhosale said that he was perhaps eight metres (or two car lengths) behind Mr Reddy and travelling at approximately the speed limit on that part of John Gorton Drive, namely 70 kilometres per hour. Mr Reddy said that he came rapidly upon a car that was stopped ahead of him and braked abruptly to avoid hitting it. Mr Bhosale, seeing Mr Reddy’s car coming to a stop, also braked but was unable to stop in time, and collided with the rear of Mr Reddy’s vehicle. The force of the collision was sufficient to cause Mr Reddy’s airbags to deploy. Mr Bhosale said that the road surface was dry at the time, but that his brakes had locked and he had skidded into Mr Reddy’s car.
Mr Bhosale apparently did not see, or was unable to see, the vehicle in front of Mr Reddy’s car that had compelled him to brake abruptly. Both parties agreed, however, that a third party named “Daniel” saw the accident, followed the vehicle in front and obtained its registration details, and returned to the accident and gave this information to the parties. Neither of the parties called Daniel as a witness, nor did either party make contact with the vehicle that had stopped in front of Mr Reddy’s vehicle and apparently triggered the events leading to the accident.
Mr Bhosale said that immediately after the accident he called his parents, who came to the scene. There was apparently some discussion over the obtaining of quotes for repairs to Mr Reddy’s car. Mr Reddy in his application suggested that Mr Bhosale or his parents offered to pay for his repairs, although Mr Bhosale has strongly rejected that suggestion. It was, however, established at the scene that neither party had comprehensive insurance cover for their vehicle.
The applicant’s car is a Volkswagen Polo 6R hatchback manufactured in 2018. Mr Reddy lodged a crash report with the Australian Federal Police on 20 September 2021, the day after the accident. He obtained a quote for repairs from Craig Hall Bodyworks on 21 September 2021 for $12,539.48. Mr Bhosale’s car, a Honda Accord, was written off; Mr Bhosale produced a contract of sale for a replacement vehicle, also a Honda Accord.
As noted above, Mr Reddy held a certificate permitting him to drive an unregistered vehicle under certain conditions. He explained that he had been told that the limitations imposed in response to the COVID-19 pandemic made it impossible for authorities in the ACT Government to process his application for registration in a timely fashion, and as a result he was issued the permit on a temporary basis. The permit ran from 31 August 2021 to 27 September 2021 and allowed him to drive his vehicle within the ACT.
Consideration
Mr Reddy’s case is that Mr Bhosale should have kept a proper distance but failed to do so, and responsibility for the accident is at his door. Mr Bhosale says that Mr Reddy had no reason to brake so abruptly, and the fault lies equally with both drivers. He has also questioned whether Mr Reddy was lawfully on the road, that is, whether he was driving within the parameters of his permit to drive an unregistered vehicle.
It is a little unusual that the other people who were peripherally involved in this matter were not called as witnesses. The driver of the car that stopped in front of Mr Reddy and caused him to brake abruptly has not been identified, and the third party “Daniel”, whose contact details were available to the parties, has not been called. But the facts of the matter, so far as these potential witnesses appear likely to have been able to say, are not contested. It is accepted that a car in front of Mr Reddy’s stopped, that he stopped in response, and that Mr Bhosale braked, but was unable to stop in time.
Every road user owes a duty of care to others also using the road. Under the CLW Act, the standard of care for Mr Bhosale, as for any other road user, is that of a reasonable person sharing the road with others. That includes keeping a vehicle properly maintained, paying proper attention while using the road, and keeping a safe distance from other vehicles, especially those immediately ahead in the direction the vehicle is travelling. Mr Bhosale says that Mr Reddy braked unduly fiercely; but the potential for some emergency to arise on the road ahead is always there, and it is every road user’s responsibility to drive at a speed, distance and attentiveness that allows an accident to be avoided even where a vehicle ahead comes to an unheralded emergency stop. No one can be sure, for example, that a child is not going to rush out onto the road. This obligation is reinforced by regulation 126 of the Road Rules Regulation, which requires drives to maintain a safe distance from the car in front so as to avoid a collision.
It is clear to me that Mr Bhosale failed to meet the above standard of care. The evidence does not allow me to make a finding about the speed at which he was travelling; he says 70 kilometres per hour, but the speed is uncorroborated, and there is obviously the potential for the statement to be self-serving. Mr Reddy’s police report is of little use, as it identifies both vehicles as travelling at “> 30 kmh above the speed limit”, when Mr Reddy says that his own car was stationary or close to it. I do not in any case believe that Mr Reddy can have an informed view of the speed of a car that slammed into the rear of his own vehicle with minimal warning (Mr Reddy said that he heard a “beep” immediately before the collision, presumably his rear bumper sensors). Nor can I arrive at a finding regarding the distance between the two vehicles immediately before the accident – Mr Bhosale says eight metres, but there is no corroboration of that figure – and I have no evidence whatsoever regarding how attentively Mr Bhosale was driving and how well his car was maintained. The immediate cause of the crash could have been inattentiveness on Mr Bhosale’s part, or too little distance between the vehicles, or too high a speed, or some defect of Mr Bhosale’s car, such as bald tyres or faulty brakes, or some combination of these factors. But all of these are matters for which Mr Bhosale is the party responsible, as owner of the vehicle and as driver.
No other factors that might have contributed to the collision have been put forward, except for Mr Bhosale’s contention that Mr Reddy braked too abruptly. There are various lines of argument potentially available to Mr Bhosale that in certain circumstances he might have called on. These, and the case law in which they have been considered, were recently canvassed in some detail in a somewhat similar case, Ruddick v Hseih[4] (Ruddick); none of these lines of argument were put forward by Mr Bhosale, and the facts of the present matter do not suggest to me that any of them would have been available to him. It might be possible to read Mr Bhosale’s argument that Mr Reddy braked too abruptly as a claim for contributory negligence; but for the reasons advanced above, and those examined in detail in Ruddick, that argument fails. Mr Reddy was not acting negligently when he braked to avoid hitting a car in front of him.
[4] [2022] ACAT 14
Mr Bhosale’s argument that he escapes liability because Mr Reddy was unlawfully on the road relies on Mr Reddy’s permit to drive an unregistered vehicle; Mr Bhosale observed that Mr Reddy appeared on John Gorton Drive not from his address in Wright but from a tributary road in Denman Prospect, and that Mr Reddy’s attire, being extremely informal, suggested he was not, as he asserted, on his way from home to work. Mr Bhosale argued that Mr Reddy’s permit only allowed him to drive to and from his place of work, and that he was not doing so. The argument fails for a number of reasons.
The first issue with Mr Bhosale’s argument is that Mr Reddy’s permit was not in fact in terms that allowed him only to travel to and from work – although that is how he described it at the hearing – but rather in terms that allowed him to drive only within the ACT. As the accident occurred in Wright and on 19 September 2021, it fell within the conditions under which Mr Reddy was allowed to drive.
A second counter to Mr Bhosale’s argument is that whether or not Mr Reddy was unlawfully on the road, Mr Bhosale was obliged, regardless, to drive with due care and attention. Nothing in the Road Rules Regulation absolves a driver of the duty of care towards other drivers, whether or not the latter are lawfully on the road. And the CLW Act likewise does not assist Mr Bhosale. Section 94 of the CLW Act provides that liability for damages for personal injury in negligence is excluded if the injured person was engaged in behaviour at the time of the accident that constituted an indictable offence. But Mr Reddy was not committing an offence at the time of the accident, and this is not a personal injury claim. His police report mentioned back and neck pain, and the file includes a referral for a scan of his spine. There is no radiologist’s report, and Mr Reddy has not pressed a claim for personal injury. And in any case, even if Mr Reddy was driving outside the terms of his permit, he was not committing an “indictable offence”.[5] For these reasons the exclusion in the CLW Act offers no help to Mr Bhosale.
[5] See sections 133 and 190 of the Legislation Act 2001, section 18 of the Road Transport (Vehicle Registration) Act 1999 and regulation 86 of the Road Transport (Vehicle Registration) Regulation 2000.
It follows from the above that liability for the accident lies entirely with Mr Bhosale.
Mr Reddy provided documentation suggesting that the cost of repairing his vehicle was $12,539.48; he also claimed the fee for quoting on his repairs, amounting to $220, but accepted at the hearing that that amount would be absorbed by the repairers if they were given the work. The amount of $12,539.48 is therefore the extent of Mr Reddy’s claim, along with the Tribunal filing fee of $165.00, giving a total of $12,704.48. At the hearing I undertook to hear from the parties regarding the quantum of damages once liability had been determined. Accordingly, the parties have liberty to make submissions regarding the amount of damages that Mr Bhosale should pay; any submission must be received by a week from the date of this decision.
………………………………..
Senior Member M Hyman
Dates of hearing: Applicant: | 25 January 2022 In person |
| Respondent: | In person |
0