Steinert v Blackmore - [2010] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
STEINERT v BLACKMORE
[2010] SADC 43
Judgment of His Honour Judge Beazley
29 March 2010
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES
MINOR CIVIL REVIEW
LIABILITY
Applicant and respondent respectively were drivers of motor vehicles involved in a collision, caused by the applicant in permitting his truck to move into the adjacent lane occupied by the respondent's motor vehicle – applicant consented to judgment against himself for 80 per cent of the respondent’s property damage to be assessed – at trial he sought to set aside judgment on liability - judgment on liability properly affirmed by the learned Magistrate.

DAMAGES
Dispute between the applicant and the respondent as to the extent of damage to the respondent's vehicle said to have been sustained in accident on 16 November 2008 and identified in photographs taken 2 December 2008. The applicant asserted that the alleged damage was not caused by the subject motor vehicle accident and indeed that the motor vehicle identified by the respondent was not involved in the subject motor vehicle accident – the learned Magistrate accepted the evidence of the respondent as to the vehicle involved in the accident and the damage sustained by it, and assessed damages, after an 80/20 apportionment, in the sum of $2,067.28. She awarded costs to the respondent in the sum of $560.
Nature of Minor Civil Review – purpose and objectives of s 38 of the Magistrates Court Act 1991 considered – complaints by applicant that the learned Magistrate erred in allegedly failing to properly examine the respondent entirely unjustified.
HELD: the learned Magistrate’s findings as to the damage caused and the assessment of the quantum was clearly open to her on the evidence. Decision and orders of the learned Magistrate clearly correct – judgment affirmed – application for review dismissed.
Magistrates Court Act 1991 (SA) s 38, referred to.
Fox v Percy (2003) 214 CLR 118, considered.

STEINERT v BLACKMORE
[2010] SADC 43
Introduction

This is an application by Rodney Steinert (“the applicant”) for this Court to review a judgment delivered in a minor civil action pursuant to s 38 of the Magistrates Court Act 1991 (SA). The applicant was the defendant in action number 734 of 2009 in the Christies Beach Magistrates Court in which Alison Blackmore was the plaintiff (“the respondent”).
On 11 December 2009, a Magistrate entered judgment in favour of the respondent in the sum of $2,067.28 together with costs in the sum of $560.
Factual Background
The action before the learned Magistrate involved a claim by the respondent against the applicant for damage to her Toyota Corolla Seca motor vehicle in a collision on 16 November 2008 on Main South Road caused by the negligent driving of the applicant in permitting his truck to move into the adjacent lane then occupied by the respondent’s motor vehicle.
The Proceedings in the Magistrates Court
Prior to the hearing the applicant had consented to judgment for liability in the sum of 80 per cent of the respondent’s property damage to be assessed. When the trial came on for hearing the applicant sought to withdraw from that apportionment of liability and asserted that judgment ought to be entered only to the extent of a 50/50 apportionment of liability.
Ultimately, the applicant did not pursue his oral application to set aside judgment on liability. In affirming the judgment on liability the learned Magistrate did however touch upon the issues of liability. The intimation by the Magistrate that the apportionment was appropriate, was, with respect, inevitable in light of the admissions by the applicant that his truck did change lanes; that his truck did make brief contact with the respondent’s vehicle, and that he did not see her vehicle, prior to the collision. That apportionment may well have been favourable to the applicant.
The evidence
The Court heard evidence from the applicant, the respondent and a motor vehicle insurance assessor, Mr Mark Bullock. I do not propose to detail all of the evidence called at the hearing.
The Magistrate was provided with two contrasting accounts as to the damage allegedly sustained by the respondent’s motor vehicle in the subject accident. It was abundantly clear from the evidence given by the respective parties that both had unwittingly reconstructed the events leading to the accident.
The respondent had given evidence that she was travelling in the left lane on Main South Road, travelling adjacent to the applicant’s truck in the right lane. She said that at some point the back of her vehicle “fishtailed” and shortly thereafter both she and the applicant had pulled over to the side of the road. She had assumed that some part of the applicant’s truck had come into contact with the back right hand side of her Toyota Corolla motor vehicle. She said that she immediately examined her vehicle and identified a dent in the right rear panel. She denied unequivocally the assertion of the applicant that no damage was visible at that time. She explained that the damage received by her motor vehicle in the subject accident was that identified in photographs which had been taken by the motor vehicle assessor some 16 days later on 2 December 2008. The applicant had asserted that it was a different vehicle which had been involved in the accident. The respondent was cross‑examined by the applicant about whether the vehicle in the photographs was in fact the vehicle driven by her that day. The respondent deposed that the Toyota Corolla was the only vehicle that she had driven, that it was the vehicle involved in the collision and that the vehicle had not been damaged in the 16 days between the date of the accident and when the photographs were taken.
The assessor, Mr Bullock, gave evidence as to the reasonable cost of repairs. Mr Bullock was a very experienced assessor. He made appropriate concessions about various items of damage, and explained why it was cheaper to replace panels, rather than repair them. He detailed the quote which he had provided, at the time, and which had a total of $2,584.10, after adjustments. He deposed that this figure was a reasonable quantum of the repairs. He was cross-examined by the applicant about the way in which the damage to the respondent’s vehicle could have occurred. Mr Bullock gave an answer suggesting that the impact to the respondent’s vehicle had been caused initially to the rear of that vehicle. He conceded that he had no expertise in the field of determining how damage to motor vehicles had occurred. He said however that it was likely that the damage along the side of the vehicle had followed the initial impact to the rear. The impact was slight as if only just touching it. He disagreed with the applicant’s assertion that a reasonable cost of the repairs would be no more than $400.
The applicant gave evidence as to his long history in the transport industry. He conceded that his truck had crossed into the lane in which the respondent’s vehicle was travelling and that some contact had been made. He did not see the respondent’s vehicle before impact, and did not see the point of contact. On about 17 June 2009 he had written to the insurer of the respondent’s vehicle. In that letter he had asserted that an assessment of $400 was appropriate and had prepared a sketch disclosing some damage to the side of the other vehicle involved in the accident. That sketch indicated what appeared to be scuffing dents to the side of the respondent’s vehicle. The applicant reiterated that the vehicle depicted in the loss assessor’s report was not the vehicle involved in the accident. He was, however, unable to recall what was the make or colour of the vehicle, that he asserted was involved. He produced some photographs of his truck alongside a Charade vehicle to indicate the size of the bumper bar of his truck when compared to a smaller vehicle. He readily conceded that the Charade was a smaller vehicle than the respondent’s Toyota Corolla vehicle. He asserted that the damage indicated in the photographs by the assessor could not have been caused in the motor vehicle accident.
The Magistrate’s Reasons Delivered on 11 December 2009
The learned Magistrate accepted that all the witnesses were witnesses of truth. In particular she accepted that the applicant genuinely believed that the motor vehicle that was assessed by Mr Bullock was not that involved in the subject accident.
Having heard the two principal witnesses she accepted that the respondent’s version of the events was more probable than that of the applicant. She accepted that both parties had tended to reconstruct the events because neither of them had actually observed the point of collision. The learned Magistrate had also accepted the evidence of the respondent that, immediately after the accident, she had observed an obvious dent in her vehicle’s rear right panel. The learned Magistrate accepted that the applicant was immediately apologetic at the time. She concluded that very little had turned upon what part of the applicant’s truck had made the initial contact with the respondent’s motor vehicle. The learned Magistrate concluded that the applicant was genuinely mistaken when he had deposed that the damage depicted in the photographs taken by the assessor only some 16 days later, was not sustained in the accident.
Ultimately, the learned Magistrate was satisfied on the balance of probabilities that the accident occurred in the manner deposed to by the respondent and that the damage sustained in that collision was the damage identified by both the respondent and the loss assessor, Mr Bullock.
As to the reasonableness of the cost of repairs, the learned Magistrate noted that the applicant did have a great deal of experience in relation to the maintenance and repair of motor vehicles generally and indeed to the extent of restoring old vehicles and old trucks. Ultimately she did not accept, as the reasonable cost of repairs, his assessment of the damage being $400. The appellant’s assessment was based upon his evidence as to the extent of damage sustained, which version she had not accepted. She accepted entirely the evidence of the assessor, Mr Bullock, and concluded that the reasonable cost of repairs was the sum of $2,584.10.
She then proceeded to enter judgment for the respondent in the sum of 80 per cent of that sum, namely $2,067.28 in addition to costs in the sum of $560.
The Grounds of Review
In his grounds for review the applicant asserted that the learned Magistrate had:
·Misunderstood the nature of the evidence given by him.
·Failed to apply the standard of proof of beyond reasonable doubt - and had erred in not doing so.
·Asserted that at the scene of the accident neither the respondent nor himself had witnessed any damage to the rear of the vehicle.
·Erred by not accepting the “practical and technical evidence” given by the loss assessor and himself.
·Erred in failing to have regard to the normal “driving practice” of a driver when changing lanes.
·Failed to find that the accident could not have occurred in the manner suggested by the respondent.
·Erred in failing to ask sufficient questions of the respondent to test the practical and technical evidence given by him.
·Failed to find that the motor vehicle involved in the accident was not the motor vehicle to which the respondent had deposed.
·Erred in failing to ask the respondent whether in fact it was her motor vehicle.
·Failed to find that it was unlikely that the damage asserted by the respondent was caused in the accident on 16 November 2008.
The applicant sought orders that that the judgment entered in favour of the respondent be set aside.
The Hearing on Review
On the hearing of the review neither party requested that I ought re‑hear the evidence taken before the Magistrate. Neither party sought to adduce any additional evidence.
The applicant made submissions in terms of the grounds set out in the Notice of Review. To a large extent the applicant repeated the submissions which he had made before the learned Magistrate. He faced a disadvantage in that he did not have a copy of the transcript before the Magistrate.
Accordingly, when he submitted that at the scene of the accident neither he nor the respondent had witnessed any damage to the rear of the vehicle, it was pointed out to him that at page 33 of the transcript the Magistrate had indeed asked the respondent about that topic, and that she had specifically deposed to observing at that time the disputed dent in the right rear panel.
Further, in respect of his submission that the learned Magistrate had failed to ask whether the respondent was driving the alleged motor vehicle in the accident, it was again pointed out to him that at page 49 of the transcript the Magistrate did in fact ask that very question and the respondent had deposed to the fact that it was the only vehicle she had driven and that she was driving that vehicle at the time of the subject collision.
The applicant conceded that in the accident his truck had crossed into the adjacent lane occupied by the respondent and that he simply had not seen the vehicle prior to the collision.
He further conceded that if his version of the accident was to be accepted then it followed that either the vehicle disclosed in the photographs was a different vehicle to that involved in the accident or alternatively the damage set out in the photographs taken some 16 days later must have been caused between the date of the accident and 2 December 2008.
He also submitted that if the point of impact was the rear right panel then that finding was inconsistent with the evidence of contact given by the respondent.
The respondent by contrast simply relied upon the findings of the learned Magistrate and submitted that the application for review ought to be dismissed.
Discussion
The applicant is clearly an intelligent man who felt aggrieved by the findings made by the learned Magistrate. He understood the nature of a review pursuant to s 38 of the Magistrates Court Act, 1991. He tailored his submissions accordingly. In particular he understood that there was a need to establish that the Magistrate had made an error or reached a finding not properly open to her on the evidence; or that there was some other reason why I should interfere with the conclusions reached by her. When the applicant was informed that the onus of proof was not that of proof beyond reasonable doubt, but merely on the balance of probabilities, he no longer pressed that point of law.
In the case of Fox v Percy (2003) 214 CLR 118 at [23] the High Court said:
Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
(Footnotes omitted)
As I have already noted, the learned Magistrate was confronted with two contradictory accounts as to the circumstances of the collision and in particular the extent of the damage sustained in the accident. The applicant, in short, had submitted that if the version put forward by the respondent as to the respective positions of the vehicles was correct, then the damage could not have occurred. Neither party was able to give any direct evidence as to the point of contact, and therefore had engaged to some degree in a reconstruction as to what must have happened. It was in that context that the Magistrate had concluded that it was not necessary to determine what part of the applicant’s truck had made contact initially with the respondent’s vehicle. On any view it was light contact but one which had caused damage which was difficult to repair.
The learned Magistrate noted that there was no dispute about the fact the applicant’s truck had crossed into the lane occupied by the respondent and that contact between the vehicles had occurred. There was also no doubt that in that collision some damage, even on the applicant’s own case, had been caused to the vehicle being driven by the respondent.
The learned Magistrate accepted entirely the evidence of the respondent that the motor vehicle that she was driving was indeed the Toyota vehicle identified in the photographs taken by the loss assessor and that the damage sustained in the collision was the damage identified therein. She expressly rejected the evidence of the applicant on those critical issues. Despite accepting that the applicant was an honest and truthful witness, she concluded that he was mistaken in consequence of his reconstruction as to what must have occurred.
This case therefore involved a review of findings of fact based upon the learned Magistrates assessment of the credibility and reliability of the two parties. The learned Magistrate was in an ideal position to assess the respective cases. It is obvious that she well understood the evidence submitted by the applicant. The findings made by the learned Magistrate were clearly open to her on the evidence.
A court of review as in the present case will not interfere with findings in those circumstances unless they can be said to be inconsistent with incontrovertibly established facts.
In this case the learned Magistrate preferred the evidence of the respondent on the critical issues and gave very detailed reasons for that preference. These reasons included the learned Magistrate’s assessment of the reliability of the evidence of the applicant and the respondent, after having observed and heard them give their evidence.
There are no incontrovertible facts to suggest that the respondent’s version of the accident was erroneous nor that it was glaringly improbable. As to the question of the quantum of the damage, the learned Magistrate had the advantage of seeing and hearing both the applicant and the loss assessor, Mr Bullock. In my opinion, with respect, she was clearly correct in concluding that the damage caused to the vehicle and the reasonable cost of rectifying the damage was that deposed to by Mr Bullock. There was no proper basis for the complaints made by the applicant about the questions asked of the respondent by the learned Magistrate. Indeed, as I have found, the learned Magistrate did in fact ask the questions demanded by the respondent. Accordingly, pursuant to s 38(7)(d) of the Act, I affirm the judgment and orders of the learned Magistrate and dismiss the application for review.
Costs
Pursuant to Rule 6DCR279A of the Rules of Court, the Court has a general discretion to make an order for the costs of the review. I note also that pursuant to s 38(5) of the Act, the philosophy of Parliament is that in minor civil actions, costs are not to be awarded unless there are special circumstances justifying the award of such costs.

In this case the respondent very properly conceded that there was no proper basis upon which she could ask for an order for costs of the review. Accordingly I make no order as to the costs of the review.
Accordingly, the judgment and orders of the learned Magistrate made on 11 December 2009 against the applicant in the sum of $2,067.28 together with costs in the sum of $560 remain in force.