Riyar v Blandford - [2016] SADC 93

District Court of South Australia
(Civil: Minor Civil Review)
RIYAR v BLANDFORD
[2016] SADC 93
Judgment of His Honour Judge Soulio (ex tempore)
11 July 2016
MAGISTRATES - APPEAL AND REVIEW
Review of Minor Civil decision pursuant to s38 of the Magistrates Court Act 1991 (SA).
Extension of time to bring the application for review, granted.
Upon rehearing of matter liability apportioned two-thirds against Applicant and one-third against Respondent.
Pollard v Ensor [1969] SASR 57; Kenny v Ritter [2009] SASC 139, considered.

RIYAR v BLANDFORD
[2016] SADC 93
Introduction

This is an application to review a minor civil decision made by Ms Eldridge SM on 4 August 2015 in relation to a property damage claim arising out of a collision involving three motor vehicles, that occurred on 2 September 2013.
There are two related sets of proceedings. A vehicle belonging to one Ms Sutton was parked on Winifred Street, Glandore. Ms Blandford was driving along Winifred Street. Mr Riyar was driving slowly, to the far left of Winifred Street in the parking lane. He pulled out into Ms Blandford’s path. Her vehicle collided with his and then collided with Ms Sutton’s vehicle.
Damage was caused to all three vehicles. Ms Blandford claimed against Mr Riyar the cost of repairing the damage to her vehicle. Ms Sutton claimed against both Mr Riyar and Ms Blandford the cost of repairing the damage to her vehicle, and agreed to abide the event as to the apportionment between them in the first action.
Mr Riyar who was the applicant in the present proceedings, and the defendant at trial, had been at a friend’s house at Pleasant Avenue, Glandore. He drove from there and turned left onto Winifred Street. Ms Blandford had been travelling south along Beckman Street, crossed over a tramline, and continued along what then became Winifred Street. Pleasant Avenue was immediately to her left after crossing the tramline.
There was a collision between Ms Blandford’s car and Mr Riyar’s car (the first collision). Ms Blandford lost control of her car after the first collision and subsequently Ms Blandford’s car collided with Ms Sutton’s car parked on the side of Winifred Street (the second collision).
The magistrate found both Mr Riyar and Ms Blandford negligent and apportioned liability 80/20.
The Trial
The trial proceeded in the absence of Mr Riyar.
Rather than enter a default judgment on the basis of Mr Riyar’s failure to attend, the magistrate said the following:
Even though Mr Riyar hasn’t attended I could have dealt with it on the basis of a default judgment but it’s better for everybody if I deal with it on the basis that I hear the evidence because that way it can’t be set aside, there’s got to be a formal appeal process. So that’s how, in effect, I have determined to deal with it.
The magistrate heard some limited evidence from Ms Blandford and from one Anthony Baker, a motor assessor who gave evidence as to the cost of repairs. She then went on to find as follows:
It is not in dispute that this collision took place at approximately 4.15 on 2 September 2013. Ms Blandford was the driver of a Holden Barina vehicle registration number XKA 399 and the defendant, Mr Riyar, was the driver of a vehicle registration number S386 AV0. Ms Blandford was driving in her vehicle along Winifred Avenue, Plympton. As she came over the tramline the defendant’s vehicle pulled out from the kerb on the side of the road. She was aware of the presence of his vehicle, as he had his indicator on and she was anticipating that he was expecting to enter the roadway. He pulled out and his vehicle collided with the left front rear of her vehicle.
Clearly the primary responsibility for the collision must rest with the defendant, however the fact that the plaintiff was aware of the presence of the defendant’s vehicle and was aware that he had his indicator on means that she must bear some portion of the liability. I intend to apportion liability 80/20 against the defendant.
She then calculated what that meant in terms of the reduction in the claim made by the plaintiff, Ms Blandford, and the amounts to be paid to Ms Sutton. I will not repeat the calculations.
Mr Riyar, who was a defendant in each action, brought an application to review the minor civil decision in Ms Blandford’s claim. He complained of the judgment against him in the sum of $5,830.12, sought an extension of time within which to bring the application for review and further sought an order remitting the matter to the Magistrates Court for trial.
The grounds of appeal in relation to the findings of the magistrate as set out by Mr Riyar are as follows:
I’m claiming that I’m not responsible for the accident in that because, even according to the traffic law and rules, I can prove that it was not my fault.
Extension of Time
The grounds upon which Mr Riyar applied for an extension of time were that he did not attend the trial due to medical reasons and did not understand the requirement to institute the application for review within the relevant time limit. I have today received a medical certificate from a Dr Sumeet Dhillon, a general practitioner, which certified that Mr Riyar was suffering from a medical illness and was unfit for work on 4 August 2015, and further stating that the certificate was completed on 4 August 2015. I assume that providing his certificate in that form, whilst somewhat unusual, is Dr Dhillon’s usual practice. There was no challenge to that certification, or to the fact that Mr Riyar was ill on the day of the trial. Mr Riyar gave evidence before me that he suffered from nausea and vomiting on that day.
The question then is whether he should be given leave to bring the application for minor civil review out of time and, if so, the way in which the matter should thereafter proceed. It seems to me that, given the basis upon which Mr Riyar did not attend trial and further given what appears to be his, at best, moderate fluency in the English language which prompted me to arrange for an interpreter to assist as required, that he would have been entitled to set aside a default judgment and is, in my view, entitled to an extension of time within which to bring the application for review.
Rehearing
Rather than remitting the matter for trial to the Magistrates Court, I consider it appropriate to rehear the matter and have sworn the parties and taken their submissions and evidence collectively.
Mr Riyar appeared and was the only witness for the applicant. Ms Blandford appeared and gave evidence for the respondent. Mr East, a solicitor, appeared in the related action, but sought to take no part in the proceedings and advised that his client would simply abide the event.
The versions of events differ substantially. Ms Blandford said that she was driving her vehicle along Winifred Street in a southerly direction, taking her usual route home. She was travelling at somewhere near the speed limit of 50 km/h, but had slowed slightly to traverse the tramline which crosses Winifred Street just before Pleasant Avenue, which was to the left. She accelerated slightly towards her normal travelling speed as she continued along Winifred Street.
Her vehicle collided with the defendant’s vehicle at a point which, it seems common ground, is just further south of Gazeby Street, which also intersects with Winifred Street to the east. Unfortunately, given that the parties were not represented in this jurisdiction, I was not provided with particular assistance in relation to times and distances. Ms Blandford had considerable difficulty estimating distances, having initially suggested that the point of collision was about two minutes or so travelling time from the tramline. Upon having it pointed out to her that, at the speed in question, that might be something like one and a half kilometres away, she said that she was unable to determine how many kilometres or how many metres it might have been.
She said she saw Mr Riyar’s motor vehicle, stationary, on the left-hand side of Winifred Street, perhaps straddling the parking lane and the bicycle lane. She continued to approach assuming that he would remain in that position but said that he moved out to the right causing the left front of her vehicle to collide with the right front of his vehicle. She then swerved to the right, lost control and collided with Ms Sutton’s stationary vehicle parked further south on Winifred Street.
The account given by Mr Riyar was, as I have said, substantially different. He said that he was travelling south along Winifred Street in the single traffic lane, and that he did not see the plaintiff’s vehicle at any time prior to impact. He surmised, retrospectively, that she must have been trying to overtake him and then moved on to the incorrect side of the road before cutting back to avoid an oncoming car, lost control and struck Ms Sutton’s stationary vehicle. Mr Riyar relied upon the presence and position of debris resulting from the first collision, and described in photographs, to support his version of events.
Determination
The two versions are not reconcilable. I must make some assessment of the evidence and of the likely factual circumstances. Having viewed the photographs I note that there is what appears to be radiator fluid emanating from a point somewhere to the left of the centre of the southbound lane of Winifred Street. Mr Riyar said that came from his vehicle. Ms Blandford did not disagree.
In submissions, Mr Riyar said that proved his vehicle was in the southbound traffic lane. Ms Blandford said that Mr Riyar’s vehicle was only in that lane after he had pulled out into her path.
I note that immediately prior to the point of impact, which I accept is established by the location of the radiator fluid, the parking lane is obstructed by raised traffic bumps painted yellow which are apparently designed to prevent traffic from travelling along the parking lane.
Having considered the street map of the area, and the photographs, and the evidence of the parties, it seems to me that the most likely scenario consistent with the uncontroversial facts, is that Mr Riyar was travelling along Pleasant Avenue and turned left into Winifred Avenue, but was initially travelling in the parking lane. I accept, as is common ground, that he had his right indicator on, and in all likelihood was endeavouring to enter the southbound lane to avoid the traffic bumps.
Ms Blandford saw his vehicle at some distance, on her own account, and saw the indicator flashing. She made the assumption that he would not pull out into the traffic lane until she had passed. She did not take any defensive action and indeed, it appears on balance that, if anything, she slightly increased her speed after slowing at the tram line.
It seems to me that both were at fault. The issue of the apportionment of liability is a question of the degree of fault considering all the circumstances and is different in essence from a mere finding of fact in the ordinary sense. It is a question not of principle or positive findings of fact or law but of proportion of balance and relative emphasis in weighing different considerations. What has to be done is arrive at a just and equitable apportionment as against the plaintiff and the defendant for their responsibility for the damage. It seems clear this must, of necessity, involve a comparison of culpability, not of moral blameworthiness but the degree of departure of the standard of care of the reasonable man[1].
[1] Pollard v Ensor [1969] SASR 57.
In their joint judgment in Kenny v Ritter, Gray and Layton JJ said:[2]
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
[2] Kenny v Ritter [2009] SASC 139.
Conclusion
I consider that Mr Riyar was negligent in moving out into the traffic lane when it was unsafe to do so, despite having indicated his intention to do so. Clearly Mr Riyar did not keep a proper look-out, having not seen the approach of Ms Blandford at any time. I consider Ms Blandford was negligent, as indeed did the magistrate, in failing to keep a proper look-out and failing to drive defensively, and in proceeding on the assumption that Mr Riyar would not move over until she had passed. Given the nature of the task of apportioning liability and bearing in mind that I have set aside the magistrate’s finding on the basis she proceeded without hearing from Mr Riyar, I will apportion liability afresh. I apportion liability two-thirds against Mr Riyar and one-third against Ms Blandford.
Orders
I am prepared to adjourn these proceedings briefly to enable calculations to be made on the basis of the findings as to loss outlined by the magistrate and I will reconvene to record the agreed amounts.
Having heard the parties as to the consequential orders, I make orders by consent as follows:
In Riyar v Blandford DCCIV-16-522 there will be judgment for the plaintiff Ms Blandford in the sum of $3,704.59 inclusive of interest and costs.
In Sutton v Riyar and Blandford AMCCI-14-4264, the related action the outcome of which is affected by the apportionment of liability in the first action, I order that the first defendant, Mr Riyar, is to pay to the plaintiff, Ms Sutton, the sum of $4,629.33 and the second defendant, Ms Blandford, is to pay to the plaintiff the sum of $2,314.66.