Turner v Dalton and Dalton

[2012] SADC 67

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

TURNER v DALTON AND DALTON

[2012] SADC 67

Judgment of His Honour Judge Tilmouth

17 May 2012

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

Appeal from a judgment given in a minor civil action affirmed on the merits.

Magistrates Court Act 1991 (SA) s 38(1)(a) & (b), referred to.

TURNER v DALTON AND DALTON
[2012] SADC 67

1. This is an appeal from a judgment delivered in the minor civil jurisdiction of the Adelaide Magistrates Court on 19 December 2011.  The appellant was ordered to pay $1,453.20 (together with costs on the Summons of $300) for damages caused to the defendants’ Commodore sedan as a result of a motor vehicle collision occurring on 11 November 2010. 

2. The respondent Ms Dalton was driving the sedan in a southerly direction on South Road St Marys approaching its intersection with Ayliffes and Shepherds Hill Roads, positioned in the left hand of three south bound lanes.  A white truck appeared in the lane immediately to her right.  Upon perceiving that it was moving closer she accelerated to clear a space for it to move behind, into her lane.  Her evidence was that after accelerating she felt a slight bump to the rear of the sedan.  She slowed to allow the truck to overtake intending to bring the incident to the driver’s attention shortly afterwards.  This she was unable to achieve.  At the next set of lights she stopped behind the truck and photographed the rear, thus recording the registration number.

3. She made a cursory inspection of her vehicle but saw no damage.  After arriving home and upon closer inspection she noted damage to the right wheel arch and the right rear door.  She thereupon reported the incident to the police which resulted in the identification of the appellant, Mr Turner, as the owner and possibly the driver of the truck in question.  She arranged for repairs at the cost given in the judgment through her insurers, RAA.  The amount was disputed.

4. It appears that Mr Turner had great difficulty in extracting from the insurers precise details and location of this incident.  He was told no more and no less than that the place of the incident was South Road St Marys, according to him a stretch of up to 7 km in length.  This caused him to question the whole incident.  His reaction is hardly surprising since it is clear that he did not perceive any contact with his truck had occurred, and indeed it seems clear enough that he did not see the respondent’s sedan at the point of contact.  In his defence filed in the proceedings, he indicated that he ‘did not believe my vehicle was involved’.  Further he considered the damage was inconsistent with being caused by his truck.

5. The matter came on for hearing before a Magistrate on the above date.  The Magistrate delivered ex tempore reasons finding for the respondents.  He found the probabilities demonstrated Mr Turner’s vehicle was on South Road at relevant times, a conclusion obviously open to him given that a photograph was taken of the vehicle by Ms Dalton a few minutes afterwards.  Moreover the appellant’s job sheets confirmed that on the day in question he was using the truck in the course of transport to a job in Blackwood South, which is to the south of the subject intersection, further up Shepherds Hill Road.  The Magistrate went on to accept Ms Dalton’s evidence about how the damage later came to her attention.

6. Once the fundamental fact is appreciated that Ms Dalton photographed the rear of the truck for the very reason that an incident occurred, the inescapable conclusion is that there was contact without the appellant noticing it.  Expressed in another way, if no incident occurred it necessarily followed that Ms Dalton took the photograph for the insidious purpose of blaming an innocent driver for damage caused to the sedan in other circumstances.  This is inherently unlikely and in any case since the Magistrate believed her, was one that was out of the question.  It must also follow that he failed to keep an appropriate lookout, so that negligence was clearly proved.  The evidence of Ms Dalton gave rise to no question of contributory negligence.

7. Mr Turner also questioned how the damage could have occurred and just what the accident dynamics were, but given the above conclusions, the precise damage claimed must necessarily have been caused in the subject incident.

8. The other complaints made by the appellant in a long written submission are essentially procedural. One of them is that the Magistrate ‘continually prompted Ms Dalton’. However that was his task pursuant to s 38(1)(a) & (b) of the Magistrates Court Act 1991 (SA) because it is essentially an inquisitorial process, ‘the trial will take the form of an inquiry … rather than an adversarial context’. Indeed s 38(1)(b) requires the court itself ‘to elicit by inquiry from the parties and the witnesses … the issues in dispute and the facts …”. In the result therefore, there is no basis upon which to interfere on grounds of procedural unfairness. An examination of the transcript further reveals that his Honour was even-handed in his endeavours to assist the parties to focus on the relevant issues.

9. Without making any particular criticism of RAA Insurance in this case, it is important for insurers who subrogate the rights of insured persons and then conduct proceedings on their behalf in the small claims jurisdiction, to recognise that they are required to make adequate and prompt disclosure of all relevant materials.  The exact time and place of any accident is important.  There may have been witnesses, the driver might be in a position to prove he was nowhere near the location at the time, the scene might be examined for clues as to what actually occurred, and so on.  Moreover the small claims court which is designed to conduct expeditious hearings should not become clogged with excessive and unnecessary procedural disputes over disclosure.  If it was the case that Mr Turner was not told of the precise date, location and circumstances of the incident until an order was made in a case conference, then it must be clearly understood that course of events was unacceptable.

10. For the above reasons the judgment given in the court below is affirmed. There will be no order as to costs: s 38(5) Magistrates Court Act.