Wildermuth v Cheyme
[2014] QCATA 135
•28 May 2014
| CITATION: | Wildermuth v Cheyme [2014] QCATA 135 |
| PARTIES: | Jack Wildermuth (Applicant/Appellant) |
| v | |
| Kelby Cheyme (Respondent) |
| APPLICATION NUMBER: | APL099-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 28 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – USE OF A MOTOR VEHICLE – where respondent collided with rear of applicant’s vehicle – where tribunal found applicant responsible for collision – where tribunal did not refer to Transport Operations (Road Use Management — Road Rules) Regulation 2009 s 126 – whether grounds for leave to appeal Transport Operations (Road Use Management — Road Rules) Regulation 2009 (Qld) s 126 Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Cheyme ran into the back of Mr Wildermuth on Coronation Drive. His car suffered $2,649 worth of damage. Mr Wildermuth’s car was written off. His insurer claimed the market value of the car.
Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Mr Wildermuth pay Mr Cheyme $2,649.
Mr Wildermuth’s insurer wants to appeal that decision. It says the learned Justices of the Peace failed to have regard to Australian Road Rule, Part 11, Division 1 Rule 126: ‘A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle’.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
The rule to which the insurer refers has been incorporated into the Transport Operations (Road Use Management — Road Rules) Regulation 2009 (Qld) as s 126. It is true that the learned Justices of the Peace did not refer to the Rule in their decision, even though Mr McGregor, for the insurer, made submissions about its application[2].
[2]Transcript page 1-8, line 15 to page 1-9, line 6.
The existence of the Rule does not necessarily mean that a following car is automatically at fault if it collides with the rear of the car in front. The onus of proving the cause of a collision lies with the following car:
…the follower is in a better position than the leader to observe, and thus is able to make a choice between creating a hazardous situation (as, by failing to steer clear) and a safe situation (as, by steering well clear, or by stopping, if he is in doubt as to the leader’s intentions.[3]
[3]Rains v Frost Enterprises Pty Limited [1975] Qd R 287 at 294.
The uncontested evidence is that Mr Cheyme was not following Mr Wildermuth. Mr Cheyme came over the brow of a hill and saw Mr Wildermuth’s car in his path. Mr Cheyme said he immediately applied the brakes but he could not stop in time[4]. Therefore, he was not driving behind Mr Wildermuth in the sense contemplated by s 126.
[4]Transcript page 1-5, lines 1-4; Statement of Mr Cheyme submitted with his application filed 16 December 2013.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Justices were satisfied with Mr Cheyme’s explanation of the collision. I have read the transcript and the evidence on file. There is nothing in that material to persuade me the learned Justices should have taken a different view of the facts.
It is one thing to allow an insurer to conduct proceedings on behalf of an insured but an insurer’s participation is limited to submissions on the evidence before the tribunal. If Mr McGregor wanted to present a different version of events, Mr Wildermuth should have been available to give evidence.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
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