Rizzo v WILLIAMS No. Scgrg-97-1275 Judgment No. S6413

[1997] SASC 6413

RIZZO v WILLIAMS

Magistrates Appeal

Millhouse J

This is the first case of "road rage" I have had.  Fortunately it didn't lead to anyone's injury - although the defendant, now respondent, must have been, with justification, very frightened.  It led only to property damage.

The incident happened down on the Military Road somewhere between the Grange and Tennyson.  The learned magistrate thought it was near Hart Street which is at the Semaphore but I think he is wrong in that.  [Actually a few other of the magistrate's findings are a bit loose but none on things which matter in determining liability.]   The accident happened some kilometres south of Hart Street.

The pleadings don't allege quite where it happened: the appellant said in evidence that he turned out of "Ford Avenue" but according to my Gregory's Street Directory there is no "Ford Avenue" down that way: the respondent did not name the street out of which he turned on to the Military Road.  My guess is that each party turned out of Fort Street which joins Military Road south of Trimmer Parade.

It doesn't matter much.  Wherever it was the respondent, driving a Mini Clubman, was going West approaching the junction of the Military Road. He intended to make a right hand turn into the Military Road to travel north.  The appellant in a Corvette (a bigger vehicle which was being restored and modified - the job was nearly finished) was behind him.  The respondent made the turn, correctly into the right hand of the two lanes for north bound traffic.  He stayed there.  He was travelling after the turn at about 50 kilometres per hour.  The appellant made the turn and came up behind him.  The Corvette is a coupe and the magistrate found the hood was down.  The appellant was making signs shewing his impatience with the respondent.  The appellant moved into the left hand lane and drew level with the respondent.  He was acting in a way - I need not describe just what he was doing or saying - which attracted the respondent's attention.  The appellant passed the respondent on the respondent's left then cut in in front of the respondent by moving into the right hand lane.  He sat there for a short while, then applied his brakes.  The respondent said he saw the appellant's brake lights for two or three seconds - I doubt if that can possibly be an accurate estimate - times and distances are difficult to fix during an accident - it's better to interpret that "two or three seconds" simply as a significant time - he saw the brake lights, put his feet on the clutch and the brake respectively and swerved to his left to avoid the Corvette.  He lost control and hit the passenger side rear of the Corvette doing quite a lot of damage to it.  [There is, thankfully, no appeal on quantum only on the percentages of negligence which the magistrate fixed.]

Afterwards the respondent was frightened by the appellant's fury (the magistrate's word) and threatening attitude and ran away.

That is generally the account of events which the respondent gave.  The magistrate found the respondent the more truthful of the two parties.  Only one other witness gave evidence of the facts and the magistrate did not accept his evidence.  I suppose by saying that the respondent was the more truthful of the two the magistrate meant that he preferred his version of the facts to that of the appellant.  I shall assume so.

The only explanation which the appellant gave as to why he got into the right hand lane ahead of the respondent is that he did not know where Bower Road was: he was looking for Bower Road to turn right into it.  That is a pretty thin explanation.  Bower Road is at Semaphore South several kilometres away to the north.  Even if Bower Road had been close by it did not justify the appellant in cutting in and sitting in front of the respondent: he should have stayed behind the respondent.  The magistrate rejected that explanation and was well justified.       The appellant seems to have given no explanation as to why, even if he were looking for a street on his right into which to turn, he suddenly applied his brakes.

The view of the magistrate was that the appellant was impatient because the respondent was driving ahead of him slower than he wanted to drive: he was angry: to annoy the respondent he got in front of him and suddenly slowed down to teach him a lesson.  That is a finding on the balance of probabilities amply open on the evidence.

The magistrate's findings were open on the evidence and should stand.  Mr David Howard for the appellant, while avoiding saying this, really wanted me to reverse the magistrate's findings of fact.  I shall not do that.

The appellant was the author of his own damage.  If he hadn't wanted to pay out the respondent for getting in his way, he would have stayed in the left hand lane and taken no more interest in the respondent.

That being so I wonder why the magistrate found the respondent at all negligent.  I suppose because the respondent reacted too slowly when the appellant slowed down in front of him.  Of course, having completed his right hand turn, the respondent should have moved into the left hand lane.  Whether it were negligent of him not to is beside the point: if it were negligence it certainly was not negligence contributing to the accident.
         Had I been hearing the claim at first instance, I would have been tempted to have found the appellant 100% responsible.  However the respondent has not counter-claimed on liability so the apportionment will remain as it is.

The respondent has counter-claimed on costs.  The respondent before the original hearing had filed an offer to consent to judgment for more than the appellant was awarded.  For some reason the magistrate, having given his Reasons, was not told about the offer as he should have been.  He proceeded to tax the costs there and then.  The only thing I can do about that is to allow the cross appeal and send the matter back to the magistrate to tax the costs of the original hearing in the light of the filed offer to consent to judgment.  Let us hope, though, that the parties will now be able to agree costs and not incur any more by going back to the magistrate.

The appeal is dismissed, the cross appeal is allowed and the file will be returned to the Port Adelaide Magistrates Court for the learned magistrate to tax the costs in that court again.