Wheare v Australia Post Transport Department

[2007] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

WHEARE v AUSTRALIA POST TRANSPORT DEPARTMENT

[2007] SADC 117

Judgment of His Honour Judge Nicholson

2 November 2007

TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES

Respondent and applicant involved in two car collision - claim and counterclaim for damage caused to the respective vehicles - Magistrate found that the applicant's negligent driving was the sole cause in law of the accident - held, on application for review, decision of Magistrate affirmed.

Fox v Percy (2003) 214 CLR 118, referred to.

DAMAGES

Magistrate's findings as to damage caused and quantum affirmed.

WHEARE v AUSTRALIA POST TRANSPORT DEPARTMENT
[2007] SADC 117

1. By application dated 14 August 2007 the applicant, Jason Wheare, sought, pursuant to s38(6) and (7) of the Magistrates Court Act 1991, a review by this court of a magistrate’s decision in a minor civil claim.

2. The action before the learned magistrate involved a claim by Australia Post Transport Department and a counterclaim by Mr Wheare for damage to their respective motor vehicles following a collision between them on 18 January 2006 on South Road near the junction of South Road and Marleston Road.  On the hearing of the review Mr Wheare and Mr Firth, an employee of the respondent, both made submissions with respect to the circumstances of the accident and of the hearing below.  Mr Wheare gave quite extensive submissions.  However, Mr Firth’s submissions were very brief as he had no direct experience of the accident nor of the trial below.  Mr Firth attended merely in order to put to the court that the respondent accepted and relied upon the decision of the magistrate for the reasons he gave.

3. In the hearing before the magistrate, Mr Wheare gave sworn evidence of his recollection of the circumstances of the accident and Mr Edwards, the driver employed by Australia Post involved in the accident with Mr Wheare, also gave sworn evidence of his recollection of the circumstances of the accident.

4. On the hearing of the review before me neither party requested that I rehear the evidence taken before the magistrate.  Neither party sought to adduce any additional evidence.  What was said about the accident before me was put by way of submission to enable me to better understand the evidence given before the magistrate and his reasons.

5. The magistrate was provided with two contrasting accounts as to how the accident occurred. There is no suggestion from either party that the magistrate’s summary of the parties’ accounts in this respect did not accurately represent their respective positions. Accordingly, I adopt that summary where it is set out in paragraphs [4] to [16] of the Magistrate’s reasons..

6. In essence, Mr Edwards’ account was that he was driving his employer’s vehicle in a southerly direction on South Road and Mr Wheare was travelling immediately behind him.  From his position in lane nearest to the curb, Mr Edwards turned left into the driveway of a small group of shops.  As he did so, he became aware of another vehicle which was endeavouring to exit the car park of the shopping centre by the same driveway.  The driveway was marked for it to be used only by vehicles entering the car park and not by vehicles exiting the car park.  The presence of this vehicle prevented Mr Edwards from continuing to travel in a forward direction and it was necessary for him to bring his vehicle to a halt.  He told the court that, shortly after doing so, the car that had been travelling behind him collided with the rear of his vehicle, the necessary inference being that when Mr Edwards brought his vehicle to a stop because of the presence of the exiting car, some part of Mr Edwards’ vehicle remained protruding into the roadway.

7. Mr Wheare gave a different account.  In essence, he told the court that he was driving carefully, that he observed the plaintiff’s vehicle suddenly begin to decelerate and to move as if to turn into the driveway of the shopping centre but without indicating.  Nevertheless, Mr Wheare was able to slow his vehicle sufficiently to avoid any impact.  According to Mr Wheare, he observed Mr Edwards’ vehicle to be totally clear of the roadway after it entered into the driveway.  In other words, Mr Wheare’s evidence was to the effect that when Mr Edwards first entered the driveway no part of his vehicle protruded into the roadway.  Mr Wheare then told the court that because he believed there was now no danger and, in effect, the roadway ahead was clear, he desisted from his braking manoeuvre and continued to travel along the road in a southerly direction.  However, as he did so, he observed Mr Edwards’ vehicle move backwards from within the driveway so that part of its rear section came to protrude into the roadway at which time Mr Wheare was unable to apply the brakes of his motor vehicle in time and the collision occurred.

8. Mr Wheare in his evidence and submissions insisted that Mr Edwards did not indicate an intention to turn left, drove too quickly to safely make the turn into the driveway and made the turn from the right hand side of the near side lane in which he was travelling.  In other words, Mr Wheare put to the court that Mr Edwards made a very last-minute decision to turn left into the shopping centre and was forced to take the left hand turn in a wide arc and at speed.  However, when pressed Mr Wheare conceded that this was irrelevant to his case.  Mr Wheare’s case at all times has been that Mr Edwards successfully negotiated the left hand turn into the shopping centre driveway with no part of his vehicle left to protrude into South Road and that Mr Wheare, notwithstanding the asserted lack of timely notice or indication, was able successfully to avoid hitting Mr Edwards’ car in the rear at the time it turned into the driveway.  Mr Wheare’s case at all times has been that having successfully negotiated that manoeuvre, all of a sudden and for no apparent reason, Mr Edwards’ car then reversed back into the traffic and it was at this point that the collision occurred.

9. I pointed out to the parties that the task before me was one of reviewing what had taken place before the magistrate in order to determine whether any error on his part had been made or if there was any other reason why it might be proper that I should interfere with his conclusions.

10. When confronted with the two contradictory accounts as to the circumstances of the collision, the magistrate, as part of his task, had to decide, by reference to all of the evidence before him, which of the two accounts he accepted as being the more credible and likely to be accurate.  In this case, the magistrate having heard at length from both drivers, and they being the only witnesses to the accident who gave evidence, expressed a strong and clear preference for the evidence of Mr Edwards.  The magistrate rejected the evidence of Mr Wheare on the critical issue of whether the accident occurred whilst Mr Edwards was turning into the shopping centre driveway or whether it occurred because Mr Edwards, without warning and inexplicably, reversed his vehicle back into the stream of traffic.

11. I did not hear the evidence from either driver although I did hear lengthy submissions from Mr Wheare.  Ordinarily, an appellate court including, in my view, a court of review such as in the present case, will recognise the advantages the tribunal at first instance has in hearing and seeing the witnesses give their evidence.  In general, a finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal when introvertable facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision of the trial judge was glaringly improbable or contrary to compelling inferences in the case, see generally Fox v Percy (2003) 214 CLR 118.

12. In this case, as I have indicated, the learned magistrate expressed a clear preference for the evidence of Mr Edwards on the critical issues. He gave detailed reasons for that preference in paragraphs [26] to [35] of his judgment. These reasons included the magistrate’s assessment of the credit or credibility of Mr Wheare and of Mr Edwards, having observed and heard them give their evidence. None of the features, identified in the previous paragraph, arise on the facts of this case so as to cause me, on review, to come to a different conclusion. There are no incontrovertible facts to suggest that Mr Edwards’ account was erroneous nor was it glaringly improbable or contrary to compelling inferences. On the contrary, for the reasons given by the magistrate, the account of the accident given by Mr Edwards, having regard to all of the evidence, is inherently more likely than that given by Mr Wheare.

13. I find no good reason to arrive at findings as to the circumstances of the accident any different from those made by the magistrate.  I affirm the magistrate’s findings to the effect that the applicant’s negligent driving was the cause of the accident, see paragraph [32] of the Magistrate’s judgment.

14. Mr Wheare also complained about the magistrate’s findings to the effect that damage had been caused to the Australia Post vehicle and as to the quantum of that damage.  The magistrate accepted the evidence of Mr Olman, an assessor employed by Lumley General Insurance, as to the repairs made necessary by the accident and to the effect that the time taken and charges made with respect to those repairs, was reasonable.  His Honour accepted Mr Edwards’ evidence that the vehicle he had been driving was undamaged prior to the collision.

15. His Honour, at least by implication, rejected Mr Wheare’s evidence that on his inspection of the Australia Post vehicle after the collision there was no damage to the vehicle.

16. Again, the learned magistrate had the advantage of seeing and hearing the witnesses on this topic.  In my view, he was not in error in coming to a finding that damage was in fact caused to the Australia Post vehicle and as to the quantum of that damage.

17. Accordingly, the application by Mr Wheare for review of the magistrate’s decision is dismissed and the judgment of the magistrate below will stand.