SAMBASTIAN v KEMP - [2010] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SAMBASTIAN v KEMP
[2010] SASC 227
Judgment of The Honourable Justice Kelly
22 July 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - FAILURE TO LOOK-OUT - GENERALLY
Appellant appealed findings of magistrate as to liability and quantum in relation to a collision between the appellant's motorcycle and the respondent's motor vehicle - Magistrate found in favour of respondent's evidence at trial and gave judgment dismissing the claim and allowing the counterclaim - whether either party failed to keep a proper look out - whether either party performing illegal manoeuvre - whether crack in motorcycle frame caused by collision.
Held: Appeal dismissed - Magistrate's conclusions as to liability open on the evidence - no error shown in approach to quantum.
Cadzow v Colson [1999] SASC 132, applied.
Devries v Australian National Railways Commission (1993) 177 CLR 472; Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; Mugford v Ames (2000) 31 MVR 406, considered.

SAMBASTIAN v KEMP
[2010] SASC 227
Magistrates Appeal: Civil
KELLY J:
Introduction

This is an appeal from a decision of a magistrate deciding liability and quantum in respect of a motor vehicle accident which occurred on 19 December 2004 near the junction of Holbrooks Road and Grange Road, Flinders Park. On 16 March 2010 the Magistrate dismissed the plaintiff’s (who is the appellant on this appeal) claim and gave judgment for the defendant (who is the respondent on this appeal) on the counterclaim in the amount of $2879.29. The appellant now appeals that decision.
Background
The litigation began when the appellant first commenced an action in the Minor Civil Jurisdiction of the Magistrates Court on 17 June 2005. A defence and counterclaim was filed on 5 July 2005.
The trial commenced on 18 May 2007. It was eventually adjourned for further hearing to 6 June 2007 on which date the appellant amended the amount of his claim to $7500 which took the action out of the minor civil claims jurisdiction. The trial was relisted for 19 February 2008, by which date the parties had settled the matter.
Nevertheless, on 19 May 2008 the respondent filed an application seeking an order to set aside a judgment by consent on the basis that he contended he had been misled, if not duped, into settling the action by conduct of the appellant in representing that an allegedly independent report by an engineer had in fact not be authored by an engineer, but by the appellant’s own brother. The appellant’s brother was also an engineer however the nature of the alleged independent report and its authorship were very much in issue. Eventually after hearing the application to set aside the judgment the Magistrate permitted the parties to set aside the judgment and indicated that he would hear them as to whether a different magistrate needed to hear the resumed trial.
Eventually both parties elected to continue the trial before the Magistrate on 16 February 2010.
The appellant and the respondent were the only witnesses who gave evidence in relation to the circumstances surrounding the collision.
The Magistrate accepted the evidence of the respondent finding him to be a truthful and accurate witness. Specifically he accepted the respondent’s version of the manner in which the collision occurred. He made important findings of fact to the effect that the respondent, immediately prior to the collision, kept his motor vehicle as close as practical to the left hand centre of the roadway, that his vehicle was proceeding at a moderate speed, or even decelerating immediately prior to the collision, that his right hand indicator was switched on and that it was his intention to execute a right hand turn into an adjacent premises west of Holbrooks Road.
The Magistrate rejected the appellant’s version of the events which led to the collision. Specifically he found that the appellant was negligent in that he precipitously and without care accelerated and began to overtake the respondent’s vehicle at a time when the respondent’s vehicle was slowing down with its right hand indicator on. He found the appellant either ignored the right hand indicator or failed to keep a proper look out in which case he would have seen the right hand indicator. He rejected the appellant’s evidence that the respondent was attempting to execute a u-turn at the point of collision.
In relation to the issue of contributory negligence, the Magistrate considered whether the respondent ought to accept some responsibility for the collision. He concluded in the end that the respondent correctly used his rear vision mirror to check if any vehicles were behind him, slowed down and activated his right hand indicator before commencing to turn. He concluded that the failure by the respondent to see the appellant’s motorcycle when checking in his rear vision mirror was caused by the appellant’s precipitous action in overtaking the respondent’s vehicle. He found there was no evasive action the respondent could have undertaken to avoid the collision, which was by then inevitable.
The Magistrate considered the issue of quantum and rejected the appellant’s case that a crack in the frame of his motorcycle was caused or precipitated by the collision. The Magistrate indicated that had he found for the appellant on the issue of liability, he would have provided him with an opportunity to finally agree the reasonable cost of repairing his motorcycle minus the claim for the cost in respect of the damaged frame.
The argument on appeal
The appellant, who was unrepresented both at the trial and on the hearing of this appeal, complains that the Magistrate erred in failing to find that the respondent was making an illegal turn across a solid white line and failed to give way to the appellant as he was overtaking. The appellant relied on a written document containing a number of complaints about the Magistrate’s reasoning.
Specifically the appellant complains that the Magistrate was wrong to find that the respondent kept his vehicle as close as reasonably practicable to the centre of Holbrooks Road. He maintained that if that was the case the presence of bollards on Holbrooks Road at that point would have made it impossible for him to have overtaken on the right hand side of the respondent’s vehicle. The appellant complains that the Magistrate erred in finding that, had the accident occurred in the way suggested by the appellant, the impact would have been more of a t-bone collision. The appellant maintained that the dynamics of the collision were consistent with his case that he was travelling along side the respondent’s vehicle to the right of that vehicle at the time when the respondent commenced illegally to execute a u-turn. The appellant claimed that the impact was side-on and that the damage to his motorcycle is consistent with a side‑on collision.
The appellant complains in summary that the findings of the Magistrate were, both as to liability and quantum, either completely incompetent or corrupt. In relation to the issue of quantum the appellant continued to maintain that the crack to his motorcycle frame was caused by the collision. The appellant’s application in relation to quantum was to have his damages reassessed on the basis that the crack to the frame was caused by the accident.
Before turning to the issues which arise on the appeal, I acknowledge that the principles which govern the approach of this Court in reviewing the findings made by the Magistrate are those set out in a number of well known authorities. They were the subject of consideration by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472, Warren v Coombes (1979) 142 CLR 531 and more recently in Fox v Percy (2003) 214 CLR 118.
The findings of fact made by the Magistrate based on credibility should only be set aside on appeal if it can be shown that the Magistrate has acted on evidence which is inconsistent with facts incontrovertibly established or where a finding of fact is glaringly improbable, or contrary to compelling inference. While it is necessary for this Court to conduct a real review of the trial, nevertheless there is a real need to respect the advantages the Magistrate had in hearing and seeing the witnesses.
It is with those principles in mind that I have approached my assessment and review of the Magistrate’s findings in the matter.
The difficulty for the appellant on this appeal is that the Magistrate accepted the truthfulness of the respondent’s evidence. Accordingly he accepted that the respondent was attempting to make a perfectly lawful manoeuvre by moving as close as was reasonably practicable to the left of the centre of Holbrooks Road, by activating his right hand indicator and decreasing his speed as he prepared to turn. The Magistrate found that the accident was caused by the appellant’s negligence, in that the appellant commenced an overtaking manoeuvre in a precipitous fashion by quickly accelerating without keeping a proper lookout. Had he kept a proper lookout he would have appreciated that the respondent’s vehicle was in fact preparing to turn right into the Midas premises on the western side of Holbrooks Road.
If those findings are permitted to stand they are fatal to the success of the appellant’s claim and therefore to the appellant’s success on this appeal.
Contrary to the appellant’s submissions, in my view the objective evidence supported the Magistrate’s finding in relation to the movement of the respondent’s vehicle immediately prior to the collision.
It was not in dispute that the impact was not such as to cause the appellant’s motorcycle to fall over. In fact he was able to keep sufficient control of his motorcycle to bring it safely to a stop. The damage to the respondent’s vehicle is consistent with a low grade impact. The Magistrate’s conclusion that the two vehicles made contact side to side and not head on, or in a t-bone fashion, was supported by that evidence.
On the facts which the Magistrates found, the appellant was attempting to overtake to the right of the respondent’s vehicle at a time when the respondent was endeavouring to make a right hand turn from the roadway and had given notice of his change of direction by turning on the right hand indicator.
The driver of a vehicle following has a duty to keep a reasonable distance behind the vehicle ahead, to keep his vehicle under control at all times and to keep an alert and proper lookout. He must proceed at a speed which is reasonable relative to the speed of the other vehicle, and he must anticipate that, for whatever reason, the vehicle ahead may stop. See Mugford v Ames (2000) 31 MVR 406 at [42] to [44].
The Magistrate found that the appellant had not discharged this onus and that in the circumstances as he found them to be, the appellant was wholly responsible for the collision.
In Cadzow v Colson [1999] SASC 132 Debelle J considered the correctness of a Magistrate’s decision to apportion liability wholly against the driver of a following vehicle in circumstances where the vehicle in front was executing a turn to the right off a major highway. In the course his reasons Debelle J said at [12]:
…It is clear from the magistrate’s reasons that the cause of this collision was the failure of the defendant to keep a proper lookout. That conclusion was open to him. The driver of an overtaking vehicle must keep a sharp lookout to ensure that it is safe to overtake. Had the defendant kept a proper lookout, she would have seen the plaintiff and his son indicate their intention to turn right. She would not have begun to overtake both vehicles and the accident would not have occurred. I do not think there is sufficient basis to interfere with the magistrate’s findings or to find the plaintiff guilty of contributory negligence…
In my view the approach of the Court in Cadzow is instructive in the circumstances of this case.
I have reached the conclusion that the findings of the Magistrate in relation to the cause of this collision were open to him on the evidence. His findings of fact were based primarily on the Magistrate’s acceptance of the respondent as a truthful and accurate witness. Conversely, his rejection of the appellant’s account of the collision was primarily based on his rejection of the appellant as an accurate historian. Although the Magistrate did not go so far as to say that the evidence of the appellant was given dishonestly, he nevertheless concluded that the appellant’s account was either a mistaken reconstruction or a construction based on the circumstances as the appellant wished them to have been.
In the light of all of the circumstances which unfolded during the trial it is not surprising that the Magistrate’s findings as to credibility were made in favour of the respondent. I therefore dismiss the appeal in relation to the liability.
I turn now to the issue of quantum. The primary complaint raised on appeal by the appellant in relation to this issue concerns the findings of the Magistrate about the amount of damage sustained to the appellant’s motorcycle as a result of the collision. The Magistrate rejected the appellant’s claim that a crack to the frame of the motorcycle was caused or precipitated by the collision with the respondent’s vehicle.
The case for the appellant rested primarily on a report which the Court accepted had been co-authored by the appellant’s brother and a man named Mr Pavic. The Magistrate noted a number of defects with regard to this report, the principal problem being that Mr Pavic neither signed the report nor was he called to give evidence despite the appellant having been given numerous opportunities to do so. The Magistrate in the end was not prepared to accept that the appellant’s brother fulfilled the primary requirements of an expert scientific witness being both independence and objectivity. After noting a number of inaccuracies in the report produced by the appellant, including an assumption as to the cause of the collision which the Magistrate found was not an accurate description of the collision, his Honour concluded that he preferred the expert evidence produced by the respondent.
Given the failure of one of the authors of the report to either sign it or give sworn evidence about the contents, it is not surprising that the Magistrate adopted the course he did. Moreover the respondent’s estimate of the damage was more consistent with an impact which could be described as minor to moderate. The Magistrate found that that was the nature of the collision between the two vehicles.
In the end the Magistrate concluded that whilst he was not prepared to include the cost of any repair or replacement of the alleged cracked frame, he would allow the appellant a final opportunity to agree or prove the reasonable cost of repairing the actual damage found to have been caused in the collision. After reviewing the evidence on this topic I am satisfied that that finding was open to the Magistrate. The appellant has not demonstrated any error in the Magistrate’s approach on the issue of quantum.
For the reasons I have given the appeal is dismissed.