Wilson v Thorn

[2010] QDC 121

[2010] QDC 121

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

Appeal No 16 of 2009

ANGUS WILSON	Appellant
and
WESLEY SIMON THORN	Respondent

SOUTHPORT

..DATE 04/03/2010

ORDER

CATHWORDS

Motor Vehicle accident - claim and counterclaim for property damage in Magistrates Court - circumstances in which self-represented appellant's appeal against Magistrate's failure to find contributory negligence against the plaintiff was dismissed - appellant not present - appeal considered on the merits - appellant specifically granted liberty to apply (on conditions) to have orders set aside

HIS HONOUR:  This is the appeal of Angus Wilson against a Southport Magistrate's decision in respect the claim of Wesley Simon Thorn and Mr Wilson's counterclaim.  The two were driving their vehicles along the highway adjacent to the Broadwater when Thorn's collided with the vehicle immediately in front, a vehicle belonging to a member of the Goldspring family and apparently driven by another member of the Goldspring family.  There followed, almost immediately thereafter, a much more serious collision between Mr Wilson's vehicle, which was following Mr Thorn's. 

The Magistrate resolved conflict of evidence between the plaintiff, Thorn, and the defendant, Wilson by accepting the former's.  On the issue of negligence, he dealt, first, with the issue of negligence of the defendant who was found to have failed to keep a proper lookout while travelling along the road, failed to appreciate that it was necessary for him to bring his vehicle to a stop behind the plaintiff's vehicle. 

The Magistrate noted evidence of the defendant that he'd seen that the traffic in front was moving slowly: Commonsense indicates therefore that he would have to decrease his speed whether the plaintiff was on the road or not in order to bring the speed of his vehicle in line with the slowly moving traffic in front of him.  He did not do that.  He said that he merely watched the plaintiff's vehicle in front of him.  He was travelling too fast in the circumstances in failing to keep a proper lookout and I find that he was negligent for that reason."
The account of Mr Wilson was that the plaintiff was travelling much too close to Goldspring's vehicle, indeed, so close that he never had sight of that vehicle.  The plaintiff's vehicle was a sporty Mazda 6, not a large vehicle such as a truck or a large four-wheel drive, but, I suppose, as a matter of optics and geometry, it is possible, although it would be unlikely to be the situation for any great length of time, that a view of the leading Mitsubishi vehicle might have been completely cut off. 

Mr Wilson's complaint against the plaintiff, which relates to both establishing negligence to support the counterclaim and establishing contributory negligence against the claim was that Thorn drove too close behind the Mitsubishi and then applied his brakes "suddenly and harshly", a favourite expression of Mr Wilson, it seems.  The Magistrate was satisfied that: "At the end, the plaintiff did apply his brakes hard...to bring his vehicle up in the shortest possible time." 

The Magistrate went on:

"The plaintiff also said, prior to applying such brakes in a forceful manner, that he touched his brakes.  The significance of this from the point of view of the defendant's claim against the plaintiff is that when touching the brakes the rear brake lights would have been activated thereby warning the defendant that the plaintiff was slowing down.  If the plaintiff had, instead of touching his brakes lightly, applied more force at that time, there was every prospect that he would have brought his car to a stop before touching the vehicle in front of him.  His failure to apply the brakes in that manner means that he is responsible for the damage caused to the vehicle in front of him.  That is not the subject of this claim."

The reasons go on to note a driver's "obligation to give a warning to following vehicles of his intention to bring his vehicle under control by touching his brakes".  His Honour distinguished the present case from one where a plaintiff stops for no reason.  It was a case of Thorn stopping because he had to stop when the traffic in front did. 

His Honour is obviously right in his statement that: "The mere fact that a vehicle stops in these circumstances is not negligent."  Therefore, whatever might have been the situation in relation to Goldspring, his Honour had difficulty in finding that the plaintiff was negligent; as against the appellant in this context, he noted statements of Mr Wilson to the plaintiff's insurer which referred to his being forced to brake "suddenly and harshly", his wheels locking and his vehicle going into a skid so that he lost complete control of the vehicle.  I think his Honour was justified in making the implicit comparison between the manner of driving of Thorn and that of the appellant. 

The Magistrate declared himself assisted to an extent in resolving the conflicts between the plaintiff's and defendant's evidence by the defendant's established dishonesty in statements sent in a letter to the plaintiff's insurer.  Among the dishonest statements were assertions that an eyewitness was available to say certain things, presumably against the plaintiff.  That was totally false, explained away by Mr Wilson as an attempt to stop the matter from getting to Court.  The chronology of events was that that his complaint against the plaintiff's manner of driving followed a demand by the insurer on him. 

The notice of appeal and outline of argument which Mr Wilson eventually filed on the 30th of March 2009 essentially complained that the Magistrate accepted Mr Thorn's evidence and rejected Mr Wilson's.  The structure of those documents is to refer to the Magistrate's finding and then assert that the true facts were to the contrary.

The outline says, "By following the lead vehicle as close as he did, the plaintiff dramatically increased his need to brake suddenly and harshly.  This was his first negligent act and the catalyst that directly led to his second negligent act, which was the act of braking unexpectedly, suddenly and harshly. 

The plaintiff directly breached his duty of care to the defendant’s following vehicle by braking in this manner, and in doing so gave the defendant’s following vehicle absolutely no prior warning whatsoever of his intention to do so.  Furthermore, by following the lead vehicle as closely as he did, the plaintiff directly changed and altered the defendant's vehicle's stopping distance, and forced upon the defendant a stopping distance which was far too short for his vehicle to pull up in time to avoid a collision.

The plaintiff's vehicle literally became an object in the middle of the road that no reasonable prudent driver could possibly avoid.  Had he, the plaintiff, been following the lead vehicle from a safe distance of approximately five car lengths, as the defendant had, the defendant's original stopping distance would have been maintained, and the collision wholly avoided, unfortunately for the defendant and Mr Goldspring.  However, the plaintiff, Wesley Simon Thorn was not following from that distance, but rather from a distance so close behind the lead vehicle that his collision with it was inevitable.

The plaintiff, Wesley Simon Thorn caused both collisions for the simple reason that he was negligent in that he followed the lead vehicle far too closely and that that negligent act created further negligent acts that he committed that have been outlined in this outline of argument that ultimately caused a collision between the plaintiff's and the defendant's vehicles."

The whole position of Mr Wilson in my view flies in the face of the long-established commonsense approach regarding the onus that lies on the overtaking or following car to show that the leading car is responsible for a collision. See Rains v Frost Enterprises Pty Ltd [1975] Qd R 287, to which the Magistrate was referred. See also Broadhead v Mayberry (1988) 7 MVR 555; Freeleagus v Nominal Defendant (2007) 47 MVR 491; Lindenberg v Pullen (1995) 22 MVR 237; Chouman v Manguiler (1993) 17 MVR 144; Barker v SGIO (Qld) (1988) 7 MVR 270; Loveday v Paddison [1905] Qd R 535 at 540, 542 and Kosinski v Snai (something) [1984] 1 DLR (something) 170, 174. Of course, each case depends on its (something) facts, not an automatic application of any set of principles.

The plaintiff's evidence, which a Magistrate accepted, was that he was some four car lengths behind the Goldspring vehicle, rather than the short distance which Mr Wilson surmised. 

This is the kind of appeal which has scant prospects of success. Ms Pointing for the respondent unsurprisingly referred to the High Court's statement in Devries v Australian National Railways Commission (1993) 177 CLR 472 at paragraph 10, where it's noted that a finding of fact by a trial Judge based on the credibility of a witness is not to be set aside because an appellate Court thinks that the probabilities of the case are against, even strongly against that finding of fact.

Their Honours went on, "If the trial Judge's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial Judge `has failed to use or has palpably misused his (or her) advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was glaringly improbable."

As in Devries, there's nothing glaringly improbable about Thorn's evidence and there's no other factor within the doctrine of Devries which offers any hope whatever that this appeal might succeed.

The appellant has also relied on the claim that his Honour failed to apply relevant principles of contributory negligence, which his Honour at page 10 of the reasons had specifically found the plaintiff was not guilty of. The appellant had relied on the decision of Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALR 529 in the High Court. The basis of the complaint in the appeal grounds and the outline of argument may be his Honour's observation that this was a master and servant case rather than a road accident case.

If there is a relevant statement of principle about contributory negligence by the High Court, that is of general application, then his Honour ought to have followed any such principles.  I'm not persuaded that he failed to.  It may be that what impressed Mr Wilson about Podrebersek is that there was a finding against the plaintiff there of being 90 per cent to blame for an accident.

It is helpful to refer here to a couple of paragraphs in the reasons of the five Judges of the High Court.  Paragraph 8 (ALRM 532 line 25) says, "A finding on a ‘question of apportionment is a finding upon a question not a principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis and of weighing different considerations.  It involves an individual choice or discretion as to which there may well be differences of opinion by different minds.’  Such a finding, if made by a Judge, is not lightly reviewed.  The task of an appellant is even more difficult when the apportionment has been made by a jury.  In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did.'" 

Paragraph 10 (ALR line 48) is "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care for a reasonable man, and of the relative importance of the acts of the parties in causing the damage...

It is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.  The significance of the various elements involved in such an examination will vary from case to case.  For example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

As the Magistrate decided this matter, no question of contributory negligence really arose, as the plaintiff was exonerated from negligence except possibly in respect of damage to the Goldspring's vehicle.  There was before his Honour persuasive evidence that the first collision was a slight one.  The damage to the front of the plaintiff's vehicle in dollar terms was only a modest percentage of that to the rear with which Mr Wilson collided.  Some comfort was sought to be taken by him from a "crumple zone" at the front of the Mazda 6 which he suggested reduced the extent of damage there. 

He also sought to rely on puffing material, and perhaps other internet material extolling the merits of the Mazda 6's braking system with a view to strengthening the claim of negligence in the plaintiff.  The Magistrate made specific comments about the latter.  I think he gave those arguments of Mr Wilson all the consideration they were entitled to.

A further complication about the appeal is the interest which Mr Wilson evinces in presenting new evidence on the appeal.  It seems that he doesn't yet have that evidence, but he hopes to obtain evidence, the gravamen of which he doesn't know, from the Goldsprings.  The test for new evidence being received on an appeal such as this is that it couldn't by the exercise of reasonable diligence have been obtained at the trial.  Plainly at the time of the trial, the involvement of the Goldsprings had been identified and their evidence, whatever it may be, could've been obtained.  I'm not at all impressed by an argument that new evidence, the substance of which remains unknown, is available in a way that should affect the conduct of the appeal.  I have embarked on the hearing of it in the absence of Mr Wilson.

Could you call him again now, please?

Has the appeal been listed before for a hearing?
MS POINTING:  No.

HIS HONOUR:  The appeal was originally listed last Monday, but by administrative arrangement in the face of a courtroom being unavailable at a convenient time, moved to today at 10 a.m. 

Mr Wilson yesterday afternoon sent a fax to the Registrar enclosing a medical certificate and asking that the appeal be "rescheduled and held in an afternoon time slot" on the basis of a medical condition said to involve disabling chronic recurrent abdominal pain.  That was said to afflict Mr Wilson typically between the hours of 7 a.m. to 1 p.m., but to begin to taper off after four hours "making it possible to resume normal activities after 12 noon". 

The medical certificate of Dr Ian Mitchell dated 2nd of March 2010, which was provided, certifies in respect of a chronic pain condition that has a distinct diurnal variation and is severe in the mornings.  The doctor opined that for the period Tuesday the 2nd of March 2010 to Friday the 5th of March 2010 Mr Wilson "will be unfit to attend Court in the mornings". 

I would assume that the complaint is an enduring one and that, for the foreseeable future, rather than just for this week, the same situation would pertain.  By arrangement with my associate made yesterday, the listing of the hearing of the appeal was deferred till 12 noon.  Mr Wilson wasn't here when called at that time.  It is now 1.30.  In the last couple of minutes, the bailiff has called Mr Wilson again and he still has not appeared. 

The Judges' secretary has, today, received messages to the effect that Mr Wilson is medically unfit to appear today.  There is reported an assertion that Mr Wilson has received advice from someone that he would get "one day's grace" if he wasn't able to attend today.  I accept, from my associate, that no more was offered through him than the matter being stood down till 12 o'clock.  There's been contact as well,
Ms Pointing informs the Court, with her instructing solicitors. 

I accept that their advice to him was that if he didn't appear today or otherwise get an adjournment for the appearance of a representative, the respondent would seek to have the appeal struck out.  In the end, Ms Pointing preferred to have the appeal determined on the merits so far as that could occur in the absence of the appellant rather than have the appeal simply struck out, for example, for want of prosecution under rule 775, which I think it would have been open to the Court to do. 

A litigant cannot get an adjournment by a request made to the registrar; it is necessary that an application be made to the judge before whom a matter is listed, or another judge cf. Wall Street Developments Pty Ltd v Egerton [2010] QDC 44.

While the Court ought to be slow to reject assertions regarding a self-represented party's medical fitness, the present circumstances arise under a dreadful background from the point of view of Mr Wilson's conduct of the proceeding.  He has created as much difficulty and trouble for the plaintiff as he possibly could have, in my assessment.  Getting the matter to trial was unusually difficult.  Indeed, before the trial happened, there'd been an appeal to this Court against a Magistrate's order requiring production of certain particulars or material by Mr Wilson within 14 days.  That appeal was dismissed by Judge Forde who indulged
Mr Wilson to the extent of limiting the costs he was ordered to pay to $500.  Mr Wilson had prevailed on the Registrar to exempt him from paying the ordinary filing fees. 

At the trial, Mr Wilson appeared to be seeking an adjournment based on the unavailability of the person who'd given him the quote for repair of his own vehicle to attend to give evidence.  The quantum issue in that regard was settled by the plaintiff's repairer being given the opportunity over the weekend following the first day of the trial to make an assessment of the damage - which Mr Wilson apparently accepted.  He had declined to let the plaintiff or its insurer inspect the vehicle.

As for its predecessor, this appeal has been instituted without cost to Mr Wilson, the Registrar having again exempted him from paying the fees most litigants have to pay.  There has been difficulty in getting this appeal on too; isn't that right,
Ms Pointing?

MS POINTING:  Yes, your Honour.  It was listed to go to the callover after the appellant refused to sign a certificate of readiness and we applied to strike out for want of prosecution.

HIS HONOUR:  Thank you.  Yes, thank you for reminding me of that.  I'd like Miss Pointing's contribution typed out - printed out. 

By the time the respondent's application came before Judge Wall, the appellant's outline of argument had become available. 

In my view, the Court ought to do what it can, consistent with the interests of justice, to ensure that litigation comes to an end.  It's concerning if anything has to be done in the absence of a party, which is what's happening here today. 

My judgment is that there cannot be the slightest confidence that, on any occasion, Mr Wilson will make himself available at a hearing of the appeal.  Miss Pointing is apprehensive, and future events may show it's justified, that there will be a further appeal, or perhaps an application by Mr Wilson to set aside. 

An order will be made today dismissing the appeal with costs.  Mr Wilson will have the right of every litigant, in whose absence an order is made affecting rights, to approach the Court, to seek to have that order changed or set aside. 
It seems to me that it would be a suitable precaution for the Court to include, in its order today, liberty to apply but conditional upon any application for reopening of the appeal being on the basis that the merits of the appeal must be argued then and there.  That gives the respondent some assurance that it won't have its "day in Court" endlessly postponed. 

I feel satisfied that the Court has had, before it today all the material it needs, save except for whatever useful oral submissions Mr Wilson might have been able to make.  The Court file did not include the transcript of the first day's hearing before the Magistrate.  That transcript has become available today consequent upon my asking for it and I have read it, as I have the transcript for day 2, which was 15th of December 2008 when Mr Wilson gave his evidence and the Magistrate gave his decision. 

I have marked, as exhibits, the material relating to
Mr Wilson's medical condition today.  I have read his outline of argument, read the material which is provided to the Court in affidavit form, and the material placed on the file in respect of efforts made by him to locate Mr Jason Goldspring, who is said to be "required by the appellant to testify and give evidence against the respondent in the District Court, Southport". 

The appeal is dismissed with costs; liberty to apply within 10 business days of service of a copy of this order on the appellant on condition that he be ready to argue the appeal on the merits when any application comes on.  Does that cover everything?

MS POINTING:  I'm sorry, your Honour, what was that last‑‑‑‑‑
HIS HONOUR:  Does that cover everything?

MS POINTING:  Yes, I think so.  Just my instructing solicitor is saying‑‑‑‑‑

HIS HONOUR:  Could you call him again, just for the record?  We've now got to 10 to 2.

MS POINTING:  The only other order that I'm asked to have your Honour make is that the appellant serve us with any application the day it's filed because‑‑‑‑‑

HIS HONOUR:  Yes.  Yes.

MS POINTING:  ‑‑‑‑‑it seems he never serves us, he files things and doesn't serve it.

HIS HONOUR:  That's right; yes.  That's right. 

BAILIFF:  No appearance, your Honour. 

HIS HONOUR:  Yes, at - so the condition will be liberty to apply within 10 business days of service of copy of this order on the appellant on conditions that (1) he be ready to argue the appeal on the merits when any application comes on and (2) he has filed and served on the respondent all material intended to be relied on three business days - three business days?

MS POINTING:  Within three business days of filing.

HIS HONOUR:  No, I was going to say three business days before the hearing.

MS POINTING:  That depends, your Honour.  The hearing could be listed two or three weeks after‑‑‑‑‑

HIS HONOUR:  Yes, I see.  I see, yes, okay‑‑‑‑‑

MS POINTING:  ‑‑‑‑‑material is filed and he might‑‑‑‑‑

HIS HONOUR:  ‑‑‑‑‑okay.  Yes, okay.  Be filed and forthwith served on the respondent - that's right.  What he'll do is file something within 10 days and then he'll get a hearing date probably in April or something, won't he?

MS POINTING:  Yes, he may. 

HIS HONOUR:  To serve on the respondent all material intended to be relied on at the hearing of such application; and (3) the hearing not occur until at least three business days after such filing and service.  So, he's got to serve you immediately - oh, no, you could get caught.  He might make an arrangement with the Judge to hear it urgently some time, mightn't he?

MS POINTING:  Yes.

HIS HONOUR:  You just can't predict when it will come on.

MS POINTING:  No.  But, I - I don't think that there would be - aside from the fact that my instructing solicitors have chosen not to enforce the judgment to this point is - and that will probably now occur there's probably no sense of urgency in this matter coming on, and that won't occur within 10 days in any event. 

The only other matter, your Honour, that I'd ask is that you say‑‑‑‑‑

HIS HONOUR:  Well, I'll delete that further order and on (2) I've said he has filed and forthwith served the respondent all material - I'll say proposed to be relied on at the hearing of such application, and I'll say to the intent that the respondent have it no less than - how much time do you want before the hearing?

MS POINTING:  At least seven days.

HIS HONOUR:  Well, five business days before the hearing.  That gives you a week.

MS POINTING:  Yes. 

HIS HONOUR:  With the intent that the respondent have it no later than five business days before the hearing.  You'll be serving the order anyway, won't you?

MS POINTING:  We'll serve the order, yes.

HIS HONOUR:  I don't see any need to order you to.

MS POINTING:  No.  We'll be serving it, your Honour.  And the only other matter, your Honour, is that you state that the appeal be dismissed with costs and then, which you already said, to be agreed or assessed‑‑‑‑‑

HIS HONOUR:  No, I didn't say that, but you want - well, to be assessed if not agreed?

MS POINTING:  Yes. 

HIS HONOUR:  All right.  Well, he's not going to agree costs do you think?

MS POINTING:  I don't envisage, your Honour, that there would be an opportunity for an application to be filed and then returnable many months down the track so that there is some finality.  I don't imagine that that's something that the Registry would entertain.

HIS HONOUR:  No. 

MS POINTING:  But‑‑‑‑‑

HIS HONOUR:  All right.  Look, I'll grant liberty - a liberty to the appellant to apply within 10 business days and then I'll also say liberty to apply generally at the end.  So, that means you can apply, and if he sets it down for November or something then you can apply to say that's unreasonable.

MS POINTING:  Yes.  Thank you, your Honour. 

‑‑‑‑‑