Zotti v Novosel & Dodds - [2004] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ZOTTI v NOVOSEL & DODDS
Judgment of Her Honour Judge Kelly
20 October 2004
TORTS - NEGLIGENCE
Failure to look out - quantum of plaintiff's claim agreed -apportionment of responsibility as between defendants - 3 cars involved - first defendant wholly responsible - judgment for the plaintiff - claim against second defendant dismissed.

ZOTTI v NOVOSEL & DODDS
[2004] SADC 147

This matter originally came before another Judge of this Court as a Minor Civil Review. On 25 May 2004 before Judge Clayton of this Court the plaintiff, the first defendant and the second defendant sought an Order from the Court that the judgment of the Magistrate’s Court be set aside and the matter be remitted back to the Magistrates Court for a further trial.
On the next occasion 25 May 2004 each of the parties withdrew that application and requested that the Court deal with the appeal pursuant to Section 38 of the Magistrate’s Court Act. Each of the three parties the plaintiff, the first and second defendants were unanimous as to one issue only that the Magistrate had erred in dismissing the plaintiff’s claim on the basis he did, viz; that he was unable to make up his mind whether either or both of the defendants were liable for the accident wholly or in part.
Accordingly when the matter came on again before me on 30 June 2004 by consent I set aside the judgment imposed by the Magistrate and ordered that the rehearing commence before me. The rehearing took place on 21 July 2004.
It proceeded by way of the tendering of the evidence available to the Magistrate in the first trial supplemented by oral evidence from the first defendant and the second defendant.
The quantum of the plaintiff’s claim was agreed and the proceedings before me were solely to determine the issue of liability as between the two defendants.
The Evidence
On 17 April 2002 the plaintiff’s motor vehicle was parked on the western side of Prospect Road close to the intersection of Prospect Road and Regency Road in a position whereby the passenger side wheels of that vehicle were on the footpath and the driver’s side wheels were on the western laneway in a northerly direction on Prospect Road.
The plaintiff had parked his vehicle in that position whilst he delivered some items to a nearby shop.
Whilst in that position the plaintiff’s vehicle was damaged by a rear end collision with the first defendant’s vehicle. It is that damage which the plaintiff seeks to recover in these proceedings.
At the trial before the Magistrate both defendants denied any liability for the accident. According to the first defendant Ms Novosel whose vehicle it was which collided with the rear of the plaintiff’s vehicle, she had been driving in a northerly direction in the left hand lane of two lanes on Prospect Road. Ms Novosel contended that the second defendant Mr Dodds was in the right hand lane in Prospect Road ahead of her in a stationary position with his right hand indicator flashing when, suddenly and without any prior warning he entered the left hand lane thereby cutting off her line of travel and causing her to collide with both Mr Dodds vehicle and into the back of the plaintiff’s stationary vehicle.
Ms Novosel contended that the right hand front corner of her vehicle collided with the left hand side of the second defendant’s vehicle as a result of the second defendant’s manoeuvre which forced her into the rear of the plaintiff’s vehicle.
The second defendant Mr Dodds said that he was travelling in a northerly direction along Prospect Road in the right hand lane. As he approached the intersection with Regency Road it was his intention to make a right hand turn into Regency Road and accordingly he had his right hand indicator flashing as confirmed by Ms Novosel. As he approached the traffic lights for traffic turning right into Regency Road were red. He slowed down to an estimated speed of as little as 1 kilometre per hour and as the lights changed to green the vehicles in front of him moved off through the intersection. At that precise moment the second defendant said he felt an impact to the rear of his vehicle. As a result of that collision Mr Dodds pulled off to the left of the road and eventually parked his car a short distance north on Prospect Road ahead of the plaintiff’s damaged vehicle and went back to the area where the collision with the plaintiff’s vehicle and Ms Novosel’s vehicle had just taken place.
At the rehearing before me the plaintiff did not give any further oral evidence but was content to rely on the evidence in the transcript in the Magistrates Court which was tendered before me and marked exhibit A.
In oral evidence before me both Ms Novosel the first defendant, and Mr Dodds the second defendant maintained their respective versions in the Magistrates Court as to how the collision occurred.
The first defendant asserted that there was sufficient room for her to have passed the plaintiff’s vehicle in the western lane without incident if the second defendant had not suddenly changed lanes. The first defendant denied that she had swerved to avoid the plaintiff’s vehicle and thereby hit the rear left hand passenger side of the second defendant’s vehicle.
The first defendant also gave evidence that she had filed an application for bankruptcy on her own petition in October 2002 after this accident. She also said that she was uninsured at the time of the accident.
The second defendant stated that his vehicle sustained a dent in the rear left quarter panel of the car just behind the back wheel. He was driving to work at Yatala Labour Prison that day. A repair account from State Fleet which was tendered in evidence confirmed the extent and nature of that damage. Mr Dodds told the Court that the route which he was taking that day was one that was quite familiar to him and he had done it on numerous occasions on his way to work at Yatala Labour Prison. Although he conceded that one could travel to Yatala by proceeding along Prospect Road to Grand Junction it was actually quicker in his view to turn right at Regency Road and proceed up Hampstead Road to Yatala rather than continue on Prospect Road. He denied any last minute change of mind about travelling up Prospect Road or swerving to the left and thereby cutting off Ms Novosel’s approaching vehicle in the western lane.
Mr Dodds not unnaturally was unable to say which collision occurred first, that is whether Ms Novosel’s vehicle hit the left hand side of his car first or the plaintiff’s vehicle first as the first intimation he had of any collision was when he felt the impact with the left hand side of his vehicle. He did not notice the plaintiff’s vehicle prior to the accident and nor was he aware of Ms Novosel’s vehicle at that time.
On the first defendant’s version of the accident one would expect that the damage to Mr Dodd’s vehicle would have been more than glancing damage which appears to be the nature of that damage by reference to the State Fleet Accident Repair Form and the description of the damage by Mr Dodds. One might also reasonably have expected to see damage more to the middle of the passenger side of Mr Dodd’s vehicle if the accident occurred in the way the first defendant contends.
I have reached the conclusion on the whole of the evidence that the first defendant’s account of the way in which the accident occurred is not consistent either with the nature of the damage to the plaintiff’s vehicle or Mr Dodd’s vehicle. I have reached this conclusion notwithstanding the first defendant’s protestations at the scene of the accident and later that the second defendant caused the accident.
A spontaneous instinct to blame someone else is not necessarily indicative of the truth of the matter, especially in this case where the first defendant had every reason to blame someone else for her predicament. She could hardly blame the plaintiff whose vehicle was parked lawfully on the side of the road and unattended. She was uninsured and in obvious financial difficulties as she declared herself bankrupt a few months later.
Where there is a conflict between the evidence of the first defendant and the evidence of the second defendant I prefer the evidence of the second defendant.
The damage to the vehicles is more consistent in my view with the first defendant for whatever reason colliding with the rear of the plaintiff’s vehicle whether because she did not see it till too late or whether she misjudged the room to travel around the plaintiff’s vehicle thereby clipping the back left hand side of the first defendant’s vehicle.
I accept the second defendant’s evidence that at no stage did he intend to turn left and travel up Prospect Road but was at all times slowing down to an almost stationary position waiting for the traffic lights permitting a right hand turn into Regency Road at Prospect Road to occur.
I do not accept the evidence of the first defendant as to the manner in which the accident occurred. As I have said the damage to the vehicles is not consistent with her account. Her assertion that the second defendant suddenly moved out of the lane of traffic left into her lane, with his right hand indicator still on is not consistent with the damage to either Mr Dodd’s vehicle or the plaintiff’s.
I find on the balance of probability that the damage to the plaintiff’s vehicle and to Mr. Dodd’s vehicle occurred as a result of the negligence of the first defendant in that she did not keep a proper look out as she approached the intersection of Prospect Road and Regency Road and either did not see the plaintiff’s vehicle until it was too late or, having seen it endeavoured to avoid it and thereby caused the collision with both the plaintiff’s vehicle and Mr Dodds’ vehicle.
In the result there will be judgment for the plaintiff against the first defendant for the amount of the claim.
The formal order of the Court is:
1. The judgment of the Magistrate is set aside
2.There will be judgment for the plaintiff against the first defendant for the sum of $6,808.84 which amount is inclusive of the cost of issuing the summons as particularised in the plaintiff’s claim at first instance.
3. The plaintiff’s claim against the second defendant is dismissed.