Seferovic, Jusuf v King, Rosalind Ann & Anos

[1983] FCA 61

Re: JUSUF SEFEROVIC
And: ROSILAND ANN KING AND JOHN WILLIAM FINN
Nos A.C.T. G64 and G65 of 1982 Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Blackburn J.
McGregor J.
Neaves J.

CATCHWORDS

Negligence - Apportionment of responsibility - Motor vehicle collision - One driver failing to make right hand turn with care - Failure of other driver to proceed with caution - Interference by appellate court with apportionment of liability.

The Macgregor (1943) A.C. 197

Erupalan v. Gan Soo Swee (1971) 1 W.L.R. 1014

Lee v. Van Essen (1972) 45 A.L.J.R. 250

HEARING

CANBERRA

#DATE 15:4:1983

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondents' costs of and incidental to the appeal.

JUDGE1

Jusuf Seferovic (Seferovic) has appealed against two decisions of a Judge of the Supreme Court of the Australian Capital Territory who himself was hearing appeals by Seferovic against decisions of the Chief Magistrate of the Australian Capital Territory. The Chief Magistrate had found in favour of Rosalind Ann King (King) and John William Finn (Finn) in the action brought against them by Seferovic and in favour of Rosalind Ann Finn in her cross claim. Roslind Ann King is identical with Rosalind Ann Finn. The actions and appeals were heard together by consent.

It will be convenient shortly to set out the facts from which this litigation arises.

It appears that on 28 July, 1980, a collision occurred between a motor vehicle registered No. (A.C.T.) YDY915 owned and driven by Seferovic and another vehicle registered No. (A.C.T.) YMD644 owned by King and driven by Finn. This event occured when Seferovic was proceeding westerly in Livingstone Avenue, Kambah, apparently proposing to turn right or north into Maxworthy Street. The second vehicle driven by Finn was also proceeding west. At some stage it apparently attempted to pass the vehicle driven by Seferovic. The vehicle driven by Seferovic slowed down and commenced to make a right hand turn whereupon the two vehicles came into contact.

The learned Chief Magistrate had dismissed the claim of Seferovic and found a verdict for King in her cross claim. Without attempting to set out his findings in detail, it would seem that they were based upon the fact that Seferovic, being aware of the presence of the other vehicle approaching him from the rear, nevertheless commenced to turn his vehicle to the right directly into the path of it; and, therefore, his actions were the real and effective cause of the collision.

In the appeals before the learned Judge of the Supreme Court of the Australian Capital Territory, his Honour varied the decision because he found that the vehicle owned by King was itself, in effect, twenty-five percent to blame for the accident. Accordingly, he made an adjustment to the amount recovered by King and found a verdict in favour of Seferovic for twenty-five percent of the amount he had claimed. In his reasons for judgment, he said that he was satisfied, as had been the learned Chief Magistrate, that Seferovic took the course of turning to the right when there was a vehicle behind him which for some 200/300 metres had been attempting to pass him; and that he was negligent in doing so. He found also that Finn was negligent in that the turning indicators were, in fact, on at the rear of the Seferovic vehicle; that Finn ought to have been aware of this and that he was therefore negligent in not proceeding in such a fashion to ensure that he would not collide with the vehicle driven by Seferovic.

We have considered the evidence for ourselves. Despite the careful arguments of counsel for Seferovic, we have come to the conclusion that there is no reason to differ from the decision reached by his Honour in the Supreme Court.

It could be said that in the light of the unequivocal findings of the learned Chief Magistrate who saw and heard the witnesses, Seferovic was somewhat fortunate to have gained any finding in his favour; yet his Honour's decision was reached after his usual careful examination of the evidence and, with respect, by reasoning which supported it. We were asked by counsel for the respondents to set this finding aside; or at least to do so if we decided to interfere at all with the decision. We observe that appellate courts are usually very reluctant to interfere with apportionment of blame or liability - see e.g. The Macgregor (1943) A.C. 197 at pp. 199,202: Erulapan v. Gan Soo Swee (1971) 1 W.L.R. 1014 at p. 1021: Lee v. Van Essen (1972) 46 A.L.J.R. 250 at p. 251. There is, moreover, no Notice of Cross Appeal filed on behalf of the respondents. We decline to interfere with the apportionment of liability by the learned Judge of the Supreme Court.

In our view the correct course here is to dismiss the appeals. The orders we make as follows:-

(a) In the proceedings No. A.C.T. G64 of 1982, being the appeal by Seferovic in the proceedings originally brought by him against King and Finn, the appeal is dismissed and the appellant is to pay the respondents' costs of and incidental to the appeal.
(b) In the proceedings No. A.C.T. G65 of 1982, being the appeal by Seferovic in relation to the cross claim, the appeal is dismissed and the appellant is to pay the respondent's costs of and incidental to the appeal.

We do not consider it necessary to interfere in any way with the other orders made by his Honour as to costs.