Vanderpeer v Brocksopp - [2013] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
VANDERPEER v BROCKSOPP
[2013] SASC 8
Judgment of The Honourable Justice Stanley
15 February 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal and cross-appeal from an ex tempore judgment given by a magistrate in a claim for damages for loss resulting from motor vehicle accident - liability was admitted by respondent at trial, the only issue was the assessment of damages - the learned magistrate gave judgment for the appellant - appellant appeals on the basis that the award is inadequate as the magistrate fell into error in approaching the assessment - respondent cross-appeals the award of pre-action interest on the basis that there was no evidence before the learned magistrate that entitled the appellant to an award of pre-action interest.
Held: appeal allowed, judgment set aside and matter remitted to the Magistrates Court for re-trial before another magistrate - the learned magistrate did not give adequate reasons for his findings on contested matters - the evidence of the appellant's key witness at trial appears to have been rejected without any reasons being given for doing so.
Justices Act 1921 (SA) (repealed); Magistrates Court Act 1991 (SA), referred to.
Taylor v Hayes (1990) 53 SASR 282; Abalos v Australian Postal Commission (1990) 171 CLR 167; Screenco Pty Ltd v R L Dew Pty Ltd (1998) 58 NSWLR 720, discussed.
Harwood v Police (1998) 71 SASR 300; Kotz v Police (1999) 205 LSJS 176; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68, considered.

VANDERPEER v BROCKSOPP
[2013] SASC 8
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal and cross-appeal from judgment given by a magistrate in a claim for damages for the loss suffered as a result of a motor vehicle accident. The appellant claimed the sum of $16,151.52. This comprised a claim for repairs to her vehicle of $14,261.52, an assessment fee of $275 and a hire car cost of $1,615.
Liability was admitted. Accordingly, at trial the only issue was the assessment of damages.
The learned magistrate gave judgment for the appellant in the sum of $7,024.71. He awarded interest in the sum of $585.
The appellant appeals on the basis that the award is inadequate. She submits that the learned magistrate fell into error in his approach to the assessment.
The respondent cross-appeals the award of pre-action interest on the basis that there was no evidence before the learned magistrate of any loss suffered by the appellant entitling her to any award of pre-action interest.
Background
On 8 October 2011 the appellant was driving a metallic grey Subaru Forrester 4-wheel drive. It was the 2011 model and in good condition. There was a collision with a vehicle driven by the respondent. The respondent rear-ended the appellant’s vehicle.
The appellant’s vehicle was repaired at Eblen Motors Collision Repairs Pty Ltd (Eblen Motors). Prior to repairs being undertaken, a quote was obtained from the assistant manager of Eblen Motors, Mr Chris Dossetter-Smith. He quoted a sum of $15,114.02 inclusive of GST to repair the vehicle. This was subject to an assessment by an independent assessor, Mr Graham McDonagh. He assessed the value of the repairs inclusive of GST at $14,261.52.
Eblen Motors undertook those repairs and charged the appellant the sum of $14,261.52. Mr McDonagh charged an assessment fee of $275.
There was evidence at trial that the appellant had hired a car for her use while her vehicle was being repaired at Eblen Motors. An invoice was tendered at trial in the sum of $1,615 for the hire of a car for 19 days at $85 per day, for the period from 3 November 2011 to 22 November 2011.
At trial the plaintiff called Mr Dossetter-Smith and Mr McDonagh. The respondent called its own independent assessor, Mr Luke Ellis. Mr Ellis was retained by the respondent’s insurer to assess the damage to the vehicle. He inspected the vehicle for this purpose on 18 April 2012 at a time well after the completion of the repairs that were undertaken by Eblen Motors. He prepared a report based on his inspection of the vehicle and his perusal of various photographs that had been taken at the time of the vehicle’s repair at Eblen Motors. He concluded that the fair and reasonable cost of repairing the appellant’s vehicle was $6,344.71.
The learned magistrate’s reasons
The learned magistrate gave an ex tempore judgment.
In his reasons the learned magistrate does not address the evidence of Mr Dorrester-Smith. He refers to him only once, merely noting the possibility that he may have taken the photographs of the appellant’s vehicle.
The learned magistrate’s reasons in relation to the costs of repair focus on what he calls a dispute between Mr McDonagh and Mr Ellis. He identifies those two areas of dispute being the difference between the allowance made by each of them for removing and refitting certain parts to enable repair work to be done, and the extent of the damage to the appellant’s vehicle as a result of the collision. In relation to the latter, he noted that Mr McDonagh allowed for the repair of damage that Mr Ellis could not observe from the photographs. However, Mr Ellis conceded that the damage may have existed, although it was not evident to him from the photographs.
The learned magistrate observed that Mr Ellis could not observe from the photographs any evidence of misalignment of the rear doors or the rear panels, the rear lights and quarter panels, or the tailgate. He also noted Mr Ellis’ evidence that photographs could have been taken, but apparently were not, which would have demonstrated any damage to the boot floor and the rear quarter panels, had that occurred.
The learned magistrate then delivered the following reasons:[1]
[1] Vanderpeer v Brocksopp, judgment of Mr S Milazzo SM, 28 September 2012.
In a case such as this the plaintiff bears the burden of proof. In this claim, negligence is admitted by the defendant, but damages are in issue. The plaintiff must prove on the balance of probability the extent of the damage claimed.
Dealing firstly with the cost of removing and refitting the various parts set out in the first section of Exhibit P7, I have to consider the evidence of each witness against the objective realities. That is, how long it would take a skilled tradesman to unbolt and replace a tailgate, how long would it take a skilled tradesman to remove and replace interior trims etc. Of course I do not know the answer to this and if I did know the answer I could not use that in substitution for the expert evidence. I do have to look at the work that was done and try to determine whose evidence is likely to be more accurate.
Mr Ellis works as an independent assessor. He assesses many cars on a monthly basis for many different insurers. He said he works for between 20 and 30 insurers. He had a clear understanding of how they work. He said he looks at many assessors’ reports and has never seen a quotation in the present form. He claimed the quotation was high for ‘time and rates’. He also said he had never seen a quotation in this form from Eblen Motors.
Mr McDonagh said that he was predominately employed by a collection agency, E Collect. Some evidence was given about the operations of E Collect. It was unclear from that evidence what the business of E Collect was or how it was able to earn income from the business it carried on.
I am completely satisfied on the balance of probabilities that Mr Ellis’s assessments to remove and refit the various parts in the first part of the Eblen Motors’ quotation are fair and that the amounts that he allows for that work are amounts reasonably allowable for that work in the marketplace.
That is not to say that it was unreasonable for Eblen Motors to charge the plaintiff more if the plaintiff agreed to accept Eblem’s price. However, the plaintiff is under an obligation to mitigate her damage. While she is entitled to have the motor vehicle repaired by whoever she wishes, she is only entitled to recover from the defendant a fair market price for the work that is done. I am satisfied that Mr Ellis’s assessment for the removal and refit represents that fair market price. I am satisfied that the work could have been done for that price by any number of competent crash repairers.
I must determine the extent of the damage to the motor vehicle. On the one hand it seems unlikely that Eblen Motors’ would quote for the repair of all the components referred to in the second section of Exhibit P7 if those items were not damaged. At the same time, the plaintiff has to prove that the vehicle was damaged in the manner suggested.
I accept the evidence of Mr Ellis that it would have been relatively simple to take photographs to prove or demonstrate the damage. I also accept Mr Ellis’s evidence that the damage is not apparent from the photographs, either Exhibit D1 or Exhibit P1. I accept that the damage set out in the Eblen Motor Collision Repairs invoice may have been present but the plaintiff has failed to establish that damage.
Furthermore, because I have found that Mr McDonagh’s assessed charges for removing and refitting parts of the plaintiff’s Subaru to be grossly excessive, I am not satisfied that his assessment in relation to other aspects of the repairs is not also inflated. That is not to say that it is. It is just that I find his evidence so unreliable that I am not prepared to accept it absent corroborative evidence.
Corroborative evidence could have been easily obtained according to Mr Ellis. Quite apart from the possibility of simply taking photographs, the plaintiff could have communicated with the defendant’s insurer and invited it to inspect the damage. Having regard to the amount of the quotation for what appears to be a relatively small impact, that might have been prudent.
As Ms Downey urged upon me, it might not be an inevitable practice for insures to do this and it might not often be necessary. That is because insurance assessments are usually done on the same basis. In this case the plaintiff seeks damages grossly in excess of the industry standard. The defendant is understandably suspicious about the amount of the quotation and has resisted the plaintiff’s claim for payment in full. I assess the defendant’s damages in the amount proven, namely $6,344.71.
The learned magistrate then turned to the costs for the rental vehicle. He accepted that those costs were recoverable. He referred to the invoice which evidenced a hire period from 3 November to 22 November 2011. He found that Mr McDonough did not inspect the appellant’s vehicle until 5 November 2011, and that work did not start on it until about 9 November 2011, although he acknowledged that this was unclear. He referred to an invoice for the purchase of a tailgate that was delivered on 18 November 2011. He then noted that Mr Ellis estimated that the repairs should have taken six days. On that basis he apparently allowed eight days’ rental at the charge rate of $85 a day.
The learned magistrate refused to allow the cost of the assessment report prepared by Mr McDonagh. He held that the cost of the report would ordinarily be recoverable because the employment of an assessor is intended to minimise the cost of the repairs and is therefore part of a party’s duty to mitigate its loss. In this case, however, the assessment by Mr McDonagh allowed costs far in excess of the industry standard, and accordingly he concluded that Mr McDonagh did not seem to have been employed to minimise the plaintiff’s repair costs.
The learned magistrate allowed interest in the sum of $585 without any explanation for the basis upon which he did so.
Principles on appeal
The approach to be taken in deciding a magistrate’s appeal is explained in Taylor v Hayes.[2]Although the appeal in that case was heard under the Justices Act 1921 (SA) (repealed), the approach adopted by the Court has been subsequently followed on numerous occasions in relation to magistrates appeals. In Taylor v Hayes, Perry J said:[3]
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence, it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
[2] (1990) 53 SASR 282 at 289 – 292.
[3] (1990) 53 SASR 282 at 291.
In Taylor v Hayes[4] Perry J referred to the requirement that in hearing and determining a magistrates appeal, the Court give due weight to the advantage held by the magistrate in seeing and hearing the witnesses. This principle was explained by the High Court in Abalos v Australian Postal Commission.[5] McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, said:[6]
In S.S. Hontestroom v. S.S. Sagaporack Lord Sumner pointed out, at p 47, that:
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied “that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion”: Watt or Thomas v. Thomas.
…
As I pointed out in Jones v. Hyde, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked.
(Footnotes omitted)
[4] (1990) 53 SASR 282.
[5] (1990) 171 CLR 167.
[6] (1990) 171 CLR 167 at 178-179.
Submissions on appeal
The appellant submitted that the learned magistrate made various errors of law and fact which fell into five categories:
1.failing to resolve the primary issues in dispute;
2.applying the wrong principle in considering the issues in dispute;
3.making findings in the absence of evidence and on the basis of irrelevant considerations;
4. failing to properly analyse the evidence of Mr Dossetter-Smith, Mr McDonagh and Mr Ellis; and
5.failing to provide adequate reasons for ultimate findings.
The appellant submitted that at trial the learned magistrate had to resolve the issues of the damage that had been done to the car in the collision which required repair, the time those repairs took, whether that time was reasonable, the amount charged for those repairs, and whether that charge was reasonable. Mr Apps, counsel for the appellant, submitted that the key witness in relation to these issues was Mr Dossetter-Smith, who had undertaken the repairs. The learned magistrate simply failed to address his evidence. To the extent that his preference for the evidence of Mr Ellis implied a rejection of Mr Dossetter-Smith’s evidence, he failed to provide any reason for doing so. Much of the evidence of the two assessors concerned a methodological dispute in relation to the assessment of repair work between the concepts of real time and real money and funny time and funny money. The learned magistrate failed to address this dispute. Moreover, the appellant submitted that the approach of the learned magistrate disclosed an error of principle in that he confused concepts of mitigation with the entitlement of the appellant to restitution of her loss by obtaining the proper repair of her vehicle at a fair and reasonable cost. The learned magistrate’s conclusion that Mr Ellis’ assessment of the cost of the work represented a fair market price, was a finding made without evidence. Further, the appellant submitted that the learned magistrate’s rejection of the evidence of Mr McDonagh, in the absence of corroboration, overlooked the fact that his evidence was corroborated by Mr Dossetter-Smith. Finally, the appellant submitted that the learned magistrate’s approach to the assessment of the appellant’s loss resulting from the cost of hiring the vehicle, was wrong in principle and impossible to justify on the evidence. The appellant did not have her vehicle for 19 days while it was at Eblen Motors for the purposes of repairs being undertaken. There was no evidence to suggest that she was hiring a car while her own vehicle was available to her. In those circumstances, the learned magistrate should have allowed the full amount of the claim.
The respondent submitted that the learned magistrate plainly rejected the appellant’s claim on the basis that he was satisfied that it was inflated. He did so on the basis of a preference for the evidence of Mr Ellis on two key matters. First, on the basis that he found Mr McDonagh’s assessed charge for removing and refitting parts was “grossly excessive”. Secondly, on the basis he found the appellant had failed to prove the extent of the damage claimed.
Mr Duggan SC, counsel for the respondent, submitted it was hardly surprising the learned magistrate had preferred the evidence of Mr Ellis. He was a fulltime assessor, assessing between 160 and 180 cars on a monthly basis. By contrast, Mr McDonagh was, at best, on the periphery of the assessment industry. He submitted the learned magistrate had the advantage of seeing and hearing Mr McDonagh give evidence. There was a good reason to form an adverse view of his opinion. Mr Ellis’ assessment was less than half of the assessment done by Mr McDonagh. He submitted Mr McDonagh was not truly independent.
As to the extent of damage, the few photographs taken of the appellant’s vehicle showed little damage. The learned magistrate had accepted Mr Ellis’ evidence that there was nothing in the photographs to indicate substantial damage to the rear of the car. He submitted it was implicit in the learned magistrate’s acceptance of Mr Ellis’ evidence that he had rejected the evidence of Mr Dossetter-Smith. He submitted that it was open to the learned magistrate to do so.
Consideration
At trial, the learned magistrate had to determine three issues as to the costs of repair of the appellant’s vehicle. They were:
1.what damage had the vehicle sustained in the subject collision that required repair;
2.how long did it take for Eblen Motors to undertake those repairs, and was that reasonable; and
3.was the amount charged for the work by Eblen Motors reasonable.

The key witness on these issues, in my view, was Mr Dossetter-Smith. He provided the quote. He undertook the work. He gave evidence that the work required was accurately reflected in the quote, exhibit P2, as adjusted by Mr McDonagh. Those adjustments are represented by the handwritten notations on the exhibit which were made by Mr McDonagh. The time for the work is calculated by dividing the quoted amount by $110, which is the hourly rate at which Mr Dossetter-Smith quoted the work. He was not challenged in cross-examination on the basis that the work undertaken on the appellant’s vehicle did not take the time which is reflected in the quote, exhibit P2. Neither was he challenged on the basis that if that amount of time was taken, it was because the work was not being performed in an efficient and workmanlike manner. Neither was he challenged on the basis that the repairs undertaken were unnecessary because the damage being repaired had not occurred. These were all fundamental issues between the parties.
On the contrary, Mr Dossetter-Smith was cross-examined on the basis that the work took the time that he used as the basis for his quote, but that he was quoting at a so-called “real money” rate of $110 per hour rather than the “industry” or “funny money” rate of $30 per hour.[7] “Funny time / funny money” refers to an apparent insurance industry practise of authorising repairs at a “funny money” rate well below the actual cost to a repairer of performing work. In order for this system to work, assessors authorise work on a job for hours well in excess of the real time for the work. Mr Ellis conceded that the rate of $110 per hour for labour charged by Eblen Motors was a reasonable rate if applied to “real time”.[8]
[7] T31/20-24; T32/18-20; T33/19-21.
[8] T87/13-17; T98/37; T99/2.
These matters were fundamental to the determination of the dispute. The learned magistrate found that the appellant had failed to discharge the onus of proof on the question of the extent of the damage to her vehicle from the collision. Yet Mr Dossetter-Smith gave evidence of the existence of damage consistent with the appellant’s claim. The learned magistrate observed that it was unlikely that Eblen Motors would quote for repair of components if they were not damaged. Nonetheless, he seems to have rejected the evidence of Mr Dossetter-Smith, which evidence was supported by Mr McDonagh, in favour of the evidence of Mr Ellis, who, while conceding that the damage identified by Mr Dossetter-Smith might have existed, he could not see evidence of it in the photographs. Plainly, it was open to the learned magistrate to reject the evidence of Mr Dossetter-Smith, but only on some reasoned basis. The learned magistrate provided no reason whatsoever for rejecting Mr Dossetter-Smith’s evidence. On the contrary, as I have said, he fails to refer to his evidence at all.[9]
[9] Except in passing on the question of who took the photograph.
This Court has emphasised on many occasions the duty of a magistrate to give adequate reasons for decision in a contested matter. The extent to which reasons should be given depends very much on the circumstances of the case. The provision of adequate reasons is necessary for the purposes of appropriate appellate review.[10]
[10] Harwood v Police (1998) 71 SASR 300 at 304 – 306; Kotz v Police (1999) 205 LSJS 176 at 182; Papps v Police (2000) 77 SASR 210 at 218; see also R v Keyte (2000) 78 SASR 68 at 75 – 80.
The assessment of damages in the amount allowed could only be justified if the Court rejected Mr Dosserter-Smith’s evidence. It was open to the learned magistrate to do so, but he had to provide reasons which made clear to an appellate court why he did so. Regrettably this did not occur.
This is sufficient to dispose of the appeal.
It is unfortunate but the matter must be remitted for retrial. I am not in a position to resolve the differences on the evidence in favour of the appellant or the respondent. It is necessary for proper consideration to be given to the evidence of Mr Dossetter-Smith. His evidence must be weighed properly with the other evidence that the court may hear on the re-trial of the matter.
In the circumstances, I refrain from deciding the issues relating to the amount allowed by the learned magistrate for the car hire, and whether the award should have included an amount for the assessor’s report. I also refrain from deciding the cross-appeal. These are matters to be reconsidered in the light of the evidence adduced at the re-trial. The appellant’s claim in respect of car hire will depend on the Magistrates Court’s consideration of whether it was reasonable for the appellant to have hired a replacement vehicle for the claimed period. That will involve consideration of whether her own vehicle was available to her during that period, and if it was not, whether it is reasonable that the defendant compensate her for that cost if it was the result of a failure on the part of the appellant’s repairer to effect the repairs in a diligent and efficient manner. The appellant’s claim in respect of the cost of the assessor’s report will depend on whether that cost was reasonably incurred in all the circumstances. The question of pre-judgment interest which arises on the cross-appeal falls to be determined on the basis that there is reposed in the court an unfettered discretion as to awarding interest pursuant to s 34 of the Magistrates Court Act 1991 (SA). That unfettered discretion must be exercised judicially. In Screenco Pty Ltd v R L Dew Pty Ltd[11] the New South Wales Court of Appeal held that where a party obtaining judgment has not been put out of its money, so as to cause that party a real and practical loss, no award of interest should be allowed.[12]
[11] (2003) 58 NSWLR 720.
[12] (2003) 58 NSWLR 720 at 740 [90].
Conclusion
I allow the appeal, set aside the judgment, and remit the matter to the Magistrates Court for retrial before another magistrate.