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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SAMBASTIAN v KEMP

Details

AGLC: SAMBASTIAN v KEMP [2010] SASC 227
Case: [2010] SASC 227
Decision Date: 22 July 2010

CaseChat Overview and Summary

The appellant has appealed the findings of a magistrate regarding liability and quantum in relation to a collision between the appellant’s motorcycle and the respondent’s motor vehicle. The accident occurred on 19 December 2004, near the junction of Holbrooks Road and Grange Road, Flinders Park. The magistrate dismissed the appellant’s claim and ruled in favour of the respondent on the counterclaim, awarding the respondent $2879.29. The appellant argues that the magistrate erred in finding the respondent did not fail to keep a proper lookout, did not perform an illegal manoeuvre, and that the crack in the motorcycle frame was not caused by the collision.

The court was required to decide whether either party failed to keep a proper lookout, whether either party performed an illegal manoeuvre, and whether the crack in the motorcycle frame was caused by the collision. The magistrate found in favour of the respondent’s evidence and accepted it as truthful and accurate. The court found that the respondent kept his vehicle as close as practical to the left hand centre of the roadway, was proceeding at a moderate speed, and had his right hand indicator on, intending to execute a right hand turn. The appellant’s version of events was rejected, and the court found the appellant negligent for accelerating and overtaking the respondent’s vehicle without care, either ignoring the right hand indicator or failing to keep a proper lookout.

The court rejected the appellant’s argument that the respondent was attempting to execute a u-turn at the point of collision, and found the respondent’s evidence to be truthful and accurate. The court found that the appellant was negligent in his actions, and therefore the respondent was not liable for the collision. The appeal was dismissed, and the decision of the magistrate was upheld. The final orders of the court were that the appeal be dismissed, and the decision of the magistrate be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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