Saitov v Trotta - [2008] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SAITOV v TROTTA
[2008] SADC 114
Reasons for Decision of His Honour Judge Tilmouth
5 September 2008
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
Held: Order of Magistrate awarding property damage to defendant (respondent) and dismissing plaintiff's (appellant's) claim, upheld (turns on own facts).

SAITOV v TROTTA
[2008] SADC 114

This is a minor civil appeal, from a decision of Mr Forest SM of 3 March 2008[1]. By reasons published that day he entered judgment for the respondent Mr Trotta (defendant) against the appellant Ms Saitov (plaintiff), in the sum of $7,757.25, plus costs and disbursements totalling just under $500. The appellant’s claim for $1,100 was dismissed.
[1] [2008] SAMC 34.
When the matter initially came on for hearing in this court on 27 May 2008, the appellant indicated a desire to call expert evidence, evidence she was unable to produce at that time, so the matter was adjourned. Such evidence was not adduced in the court below. She explained the question of obtaining expert evidence was triggered by a comment of the Magistrate during the course of his reasons, to which it will be necessary for that reason to make reference later.
The trial commenced before the Magistrate on 11 September 2007. The court received the transcript as an exhibit in this case, by consent of both parties. The underlying proceeding relates to a motor vehicle accident and a claim by the appellant and counter-claim by the respondent, for damage caused to their respective motor vehicles. Both were involved in a collision on 2 January 2007 close to 3.00 pm, on the Parade at Beulah Park. They were travelling east (towards the Adelaide hills) on the Parade east of its intersection with Portrush Road. That section of road has one lane for each direction of travel. There appears to have been a line of parked cars on either side, but that is of no consequence. Traffic was fairly busy at the time according to all accounts.
The appellant gave evidence before the Magistrate of hearing a crash ahead of her. She pulled up behind an Astra sedan driven by the defendant, in front of her which also came to a stop. She described then seeing the white reversing lights of the Astra come on and suddenly reverse into her car. Relatively minor damage was caused to her Toyota Camry. Damage costing $7,757.25 to repair was caused to the rear of the Astra. Immediately ahead of Mr Trotta and his Astra, was another vehicle, a four wheel drive Freelander Landrover, driven by a Dr Lauren Taylor.
The appellant gave evidence of walking up to both drivers afterwards. She attributes to Dr Taylor a statement that another vehicle stopped in front of her suddenly without indicating, to turn right, forcing her to break in order to avoid rear-end impact. This in turn caused Mr Trotta to brake, pulling up just short of her vehicle. It was his case that Ms Saitov ran into the back of him and pushed his car into the rear of Taylor’s vehicle. He denied reversing into Saitov’s car. Various crash reports and other photographic exhibits were tendered before the Magistrate, including a bundle of correspondence exchanged between the parties or their insurers. These were also before this court in the review proceedings.
The respondent told the Magistrate he braked so as to avoid colliding with the vehicle in front. In doing so he also had in mind following vehicles behind, so he did not brake heavily, just enough to bring him to a halt just short of impact. He agrees they parked their respective vehicles, because they were blocking traffic. He claims to have told the appellant at that time “look it is nothing to do with these people up front, it is our situation here, that you hit me from the back and it has pushed me into the other car”. The latter was obviously a reference to the Taylor vehicle[2].
[2] Transcript 11 September 2007, T19 L20-23.
Dr Taylor was also called to give evidence in the court below. Her statement of 27 September 2007 was tendered (Exhibit D3). She claimed in that to have looked in her rear view mirror as she pulled up behind the turning vehicle in front of her. She then heard the sound of an impact from behind and then a second simultaneously with the Astra hitting the rear of her vehicle. As it happened not much damage was caused to her vehicle at all. She claimed in her statement to have “made particular note of the sequence of impacts as I was concerned that I might be hit from behind”.
Dr Taylor attested to the truth of that statement before the Magistrate. She said the “important elements of the crash were still fresh in my memory”[3]. And she confirmed telling the others she stopped suddenly, because of the car turning suddenly in front of her.
[3] Transcript 11 September 2007, T33 L23-26.
In an extempore judgment, the Magistrate recited the facts and issues in contention. He made the following observation, which triggered the application by the appellant to call the expert evidence referred to earlier (paragraph [12]):
The extent of the damage to the rear of Mr Trotta’s vehicle is, in my view, not consistent with Ms Saitov’s evidence as to how the collision occurred. For the damage to the rear of Mr Trotta’s vehicle to have occurred by reason of him having reversed into Ms Saitov’s vehicle, Mr Trotta’s vehicle must have been travelling in reverse at a more than walking pace speed, one would think. I stress again, I did not have the benefit of any expert evidence as to the ‘crushability’ of the rear of Mr Trotta’s vehicle. Photograph number 4 in D2 indicates a significant impact at pretty much the centre point of the rear bumper bar of Trotta’s vehicle.
The photographs do confirm that description. They also show Trotta’s front bonnet was damaged to the left of centre[4].
[4] (Exhibit D2 photograph 1 – Magistrates Court exhibit).
The Magistrate concluded there would have been “significantly less damage to the rear of Mr Trotta’s vehicle if the collision had occurred as deposed to by Ms Saitov”[5]. His process of reasoning was therefore, given the small distance between the two vehicles, reversing, even suddenly, could not have produced enough speed to produce such extensive damage to the Astra as was caused. The Magistrate also considered Dr Taylor’s evidence to be impressive, given with conviction (paras [17] and [18]), as well as, inferentially, independent (para [18]). Finally he concluded it was improbable Mr Trotta would reverse as alleged, because there was no particular reason for him to do so, considering “it is not a probable reaction on the part of a driver in his situation”[6].
[5] Reasons of Magistrate Forrest dated 3 March 2008 para [13].
[6] Reasons of Magistrate Forrest dated 3 March 2008 para 20.
As mentioned, the parties mutually proceeded on the basis of this evidence taken in the court below, on the appeal. Both reiterated many of the same points made before the Magistrate. The one major difference was the report of Mr William Potts, a consulting mechanical engineer, tendered by the appellant at the hearing on 1 September, dated 5 June 2008. The premise of his report was that damage to the Toyota Camry driven by the appellant was “insignificant with respect to impact risk”[7]. On that foundation he concluded “it was inconceivable that such minor force as applied to Ms Saitov’s vehicle could have pushed the Holden Astra under the rear of the Landrover Freelander”. Therefore he considered the damage was not “consistent with the claim that she pushed the Astra into the Freelander because there was insufficient sign of force on Ms Saitov’s vehicle”[8].   His report assumed a distance of 0.8 m between the two vehicles, so that “it would have taken only .07 seconds for the Astra in reverse to have made impact”.
[7]    Para 3.1.
[8]    Para 5.3.
The court was by no means convinced this report should have been admitted, but given the quoted comments of the Magistrate, it is not completely surprising for the appellant to have sought legal advice, which resulted in the commissioning of the report. Mr Potts gave evidence affirming these conclusions. Consistency is merely that; it is not affirmative as such, of one position or the other[9]. However, Mr Potts agreed the nature and damage caused to the respective vehicles did not favour, one way or the other, either version of the events[10]. He fairly conceded the difficulty in drawing too much out of the premise, since he accepted “the stiffness of the front of … all vehicles … is greater than the stiffness of the rear …”[11]. Having accepted the rear of a vehicle is normally “very stiff, very compliant, very flexible”[12], in comparison with the build of the front of a vehicle, it is hardly surprising the rear of the Astra evinced so much damage and the front of the Camry, so little.
[9] B v R (1993) 66 A Crim R 192 at 196.
[10] T35 L18-L29.
[11] T36 L9-L12.
[12] T38 L10-L12.
The opinion of Mr Potts is therefore essentially based on no more than speculation, namely that it was likely the damage caused to the front of the vehicle driven by the appellant, would have been greater had her version of the events been correct. This being so, the opinion evidence of Mr Potts does not advance matters further and does not provide any other quantification upon the considerations referred to by the Magistrate, quoted above.
It is not possible to identify error, either factual or legal, in the reasons or the reasoning of the Magistrate. Reviewing the matter afresh, unaffected by his decision, the court reaches the same view. The damage to the respective vehicles is not particularly telling one way or the other. The inherent probabilities are that it is practically inconceivable for Mr Trotta to have suddenly reversed his vehicle, for no apparent reason. Moreover, it is difficult to appreciate, given the small distance and the time frame involved, how he could possibly have achieved sufficient speed to explain the significant extent of damage cause to his Astra. Still further he said he was acutely aware of the vehicle behind him, a position not difficult to accept given the volume of traffic on the road that afternoon.
His version of events was supported by Dr Taylor, which there is no reason to doubt and which was accepted by the Magistrate as accurate, reliable and independent. The expert evidence tends to favour the view that the “crushability” to the rear of Trotta’s Astra is no less consistent with his account of the events, than it is of hers.
Other issues were also agitated by the appellant. First, she complained neither she nor the other parties walked through the gap between the stationary Freelander and the Astra, as Trotta said they did. This seems to be quite beside the point and throws no light on the material cause of events that day. She also pointed to correspondence received from the insurer of the respondent, “falsely” suggesting Mr Trotta had a passenger in his vehicle “that would support his version of events”. Like the Magistrate, the court takes the view that there seems to have been a misunderstanding, as Trotta had an independent witness available – Dr Taylor – so that this was equally of no consequence. Had he suggested there was a passenger as well as Dr Taylor to support him, that might have affected his credibility, but he did not ever assert that he had any more than one other witness.
That leads to the application by the respondent to tender the report of Mr Aust, in response to that prepared by Mr Potts. The court received the report and oral evidence from Mr Aust provisionally, simply because both experts were present and prepared to give evidence, reserving the question of admission for later. The Potts report was served soon after it was prepared, whereas Mr Aust’s was dated 28 August 2008. It was commissioned on Tuesday 26 August 2008, that is six days before the trial was set to resume. An explanation was given by Mr Offler, the insurer of Mr Trotta, to the effect that his solicitors filed submissions arguing Mr Pott’s report should not be admitted or given any weight. Apparently there was a last minute change of heart. This gave very little time for the appellant to respond, but in the result she had Mr Potter with her in court, obtained an adjournment to consult him and seemed capable enough of dealing with the issues in contention, all the same.
The explanation given for the late provision of the Aust report, is that the solicitors were waiting for photographs from Mr Potts, who was in Queensland. Had they experienced a difficulty in relation to that, their remedy was to apply for production, or an interlocutory adjournment, rather than leaving the matter so late, pursuant to 6R 214 (2). The Rules require expert evidence to be disclosed to the other parties, generally within a period of sixty days beforehand (6R 160). Whatever the formal requirements of the Rules, there was plainly insufficient notice given in this case of Mr Aust’s report. In those circumstances the court declines to receive the report. It places no reliance on that or upon his oral evidence, for the purposes of this decision.
The parties made mutual application for costs of the proceedings and particularly to recover the expenses involved in obtaining expert reports. In light of the above conclusion, it would not be appropriate to make an order in favour of the respondent for the preparation of the Aust report: see 6R 33(2)(a), (7)(a). Likewise, since the Potts report did not advance matters or alternately did not alter the situation from that pertaining at trial, it would not be appropriate to award costs in favour of the appellant, either.
In the result, the appeal is dismissed. The orders of the Magistrate dated 3 March 2008 are affirmed. There will be no order as to costs.