Andrew Philip Towler v JMCT Pty Limited

The Local Court proceedings 8To determine what were the issues for determination by the Magistrate, it is necessary to briefly consider the pleading framework. 9By statement of claim JMCT pleaded that Mr Towler was negligent in that he was: (a) Driving at too great a speed in the circumstances; (b) Failure to stop in time to avoid a collision with the plaintiff's vehicle; (c) Failure to steer clear of the plaintiff's vehicle; (d) Failure to maintain any or any adequate control of the defendant's vehicle; and (e) Failure to keep a proper look out. JMCT sought the sum of $35,733.04 for damages. 10Mr Towler denied liability and alleged contributory negligence. The particulars of contributory negligence alleged against JMCT were as follows: (a) Driving without due care and attention; (b) Failure to steer clear of the defendant's vehicle; (c) Driving in a careless and reckless manner; (d) Driving at excessive speed; (e) Failing to heed the presence of the defendant's vehicle on the road; (f) Failing to keep the plaintiff's vehicle under any or proper control; and (g) Failure to comply with the provisions of Road Rules 2008. 11Mr Towler filed a cross claim seeking damages to his vehicle in the sum of $2,858.32 . He alleged that JMCT was negligent as follows: (a) Failure to heed the presence of the defendant's vehicle on the roadway; (b) Driving without due care and attention; (c) Driving in a careless and reckless manner; and (d) Failure to keep a proper lookout and (e) breach of the Australian Road Rules. 12The hearing in the Local Court was only on the issue of liability. Quantum had been agreed between the parties. The hearing on 11 April 2011 lasted nearly one day. At the conclusion of the hearing the Magistrate gave an ex-tempore judgment. 13It is common ground that the accident occurred on Bellevue Street, Thornleigh at about 1.30 pm on 6 February 2009. Mr Tran, an employee of JMCT was the driver of a 6 tonne flat top truck vehicle registration number XXX865 ("the truck"). Mr Towler was the driver of a Toyota Hilux utility vehicle registration XXX44E. Mr Dransfield was a passenger in Mr Towler's car. Mr Tran, Mr Towler and Mr Dransfield gave evidence and were cross-examined at the hearing in the Local Court. Mr Dransfield's evidence was corroborative of Mr Towler's evidence. 14Mr Tran and Mr Towler's versions of events differ. Mr Tran relied on his affidavits filed 29 October 2009 and 19 March 2011. Mr Tran's version of events is that he was driving his employer's truck and had completed a delivery to Dan Murphy's. His vehicle was in the delivery dock at right angles to the roadway and the front of the truck was about a metre in from the road. Mr Tran was proposing to turn left into Bellevue Street, Thornleigh. While waiting to turn his vehicle was stationary. While he was waiting to turn he saw to his left two cars. One car was stationary and appeared to be attempting to reverse park into a car space. Mr Towler was driving the other car. Mr Towler's car then overtook the car that was stationary, came to the incorrect side of the road and collided with the nearside corner of Mr Tran's truck. The damage to Mr Tran's truck was to the left front corner. The damage to Mr Towler's vehicle was behind the driver's cabin between the cabin and the beginning of the tray on the offside of the vehicle. Mr Towler had been driving between 20 and 30 kph at the time of impact. The vehicle doing the reverse park was about 20 metres away on the opposite side of the street. The collision with Mr Tran's truck occurred while he was about a metre in from the roadway. A diagram prepared by Mr Tran showing his version of the accident appears at Appeal Book 129. 15Mr Towler relied on his affidavit sworn 27 December 2010. His version of events was that his vehicle had come to a stop; there were two vehicles stationary in front of him. He saw Mr Tran's vehicle about 10 to 12 metres away ahead of the two vehicles. It was reversing into the loading dock from the roadway. While in the reversing process Mr Tran's vehicle was blocking the street ahead of the two vehicles. When Mr Tran finished reversing into the dock the two cars moved off and then Mr Towler moved off. Mr Towler stated in affidavit evidence and during cross examination that he was travelling at a speed of about 15 kph and still in first gear when he drove past the opening of the loading dock and he suddenly heard a large bang and an impact on his righthand side. He did not see the impact occur. He felt his vehicle move sideways being pushed to the left. His vehicle had been "T boned". In an earlier statement given to his insurer, Mr Towler estimated his speed to be 20 to 30 kph ( Appeal Book 141 ). 16Photographs of the damage to Mr Tran's vehicle appear at Appeal Book 118 and of Mr Towler's vehicle at Appeal Book 120, 127 and 137. It is common ground that Mr Towler's vehicle after the impact with Mr Tran's vehicle struck a parked car, the vehicle owned by Mr Zero.

The Magistrate's decision 17The Magistrate gave a brief ex tempore judgment. At T57 his Honour stated: "... I am now in the position where I have to pick between the two parties. It seems to me that there is a possibility of negligence on the part of both parties, but if I have to pick which one is likely to have been the one who was the more negligent - and I guess that is the situation we have got ourselves into - I find for the plaintiff on the basis that a truck of the size Mr Tran's would hardly be in a position to move rapidly out; that is, allowing two cars to go but not the utility of Mr Towler. It is also more than likely that the speed at which Mr Towler was going was considerably faster than the truck and that may have led one way or another to him coming into contact with the truck. ON THAT BASIS, ON THE BALANCE OF PROBABILITIES, I FIND FOR THE PLAINTIFF."

Grounds of appeal 18Mr Towler appeals the whole of the decision of Coombs LCM, essentially on the ground that the Magistrate erred in law in failing to give reasons for his finding of fact, or alternatively , erred in law in finding that the defendant had proved on the balance of probabilities that the plaintiff was negligent, or alternatively, erred in law in failing to state reasons and make necessary findings of fact as to: (a) The location of the vehicles at the time of impact; (b) Whether Mr Tran's truck was moving or stationary at the time of impact with Mr Towler; (c) The location of Mr Zero's parked car, by reference to the diagram drawn by Mr Tran on 23 July 2009; (d) Whether, by reference to the position of Mr Zero's parked car, the angle of impact between Mr Tran's truck with Mr Towler's car and the subsequent impact between Mr Towler's car with Mr Zero's parked car was consistent with the defendant's evidence that Mr Tran was negligent; (e) Mr Towler's speed at the point of impact with Mr Tran; (f) Whether the damage to Mr Tran's truck was consistent with the plaintiff's evidence that Mr Tran was negligent; (g) Whether the damage to Mr Towler's car was consistent with the plaintiff's evidence that Mr Tran was negligent; (h) The location of Mr Tran's truck after the collision; and (i) Whether there was contributory negligence on the part of Mr Tran; and in finding that the JMCT proved, on the balance of probabilities, that Mr Towler was negligent. 19I do not accept that findings of fact need to be made in relation to each and every one of these paragraphs. 20Counsel for JMCT submitted that the pertinent particulars of negligence which were impressed upon the Magistrate during submissions were: failing to keep a proper lookout; travelling at speed which was excessive in the circumstances in a narrow street; and going to the incorrect side of the road. According to Counsel, the Magistrate was alert to the main issues, such as whether Mr Tran started out into the road and whether Mr Towler was keeping a proper lookout (Appeal Book 19, line 20). Counsel further submitted that the finding of speed identified a breach of duty of care which was sufficient for the Magistrate to find in favour of JMCT and that a proper examination of the Magistrate's decision would conclude that although it was not lengthy or elaborate it was sufficiently adequate and that the Magistrate had not failed to state his reasons nor failed to make necessary findings of fact and accordingly did not err in law. 21I respectfully agree with the statement of Hall J in Walker v Lee [2011] NSWSC 108 at [98] where his Honour says that it is unnecessary in a case involving a collision between two vehicles for the Magistrate to give an elaborate discussion of the evidence and the issues raised in the course of cross-examination of the witnesses. 22However, the Magistrate's reasons that were the subject of the appeal in Walker v Lee went beyond the reasons of the Magistrate in this case. For instance, in that case, the Magistrate discussed in his reasons why the evidence of the successful party was to be preferred to the evidence of the other party: Walker v Lee at [78]. 23There are many decisions on the topic of judicial obligation to provide reasons. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, his Honour McHugh JA says that one of the purposes of reasons is to enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision . At 278, h is Honour remarks that a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles, so that a decision that is made arbitrarily can not be a judicial decision. 24The Magistrate had to assess which version, or combination of versions of events, fitted into a scenario so as to conclude the cause of the collision and whether there was a breach of duty of care. Further, the Magistrate had to address whether Mr Tran was guilty of contributory negligence. 25The following findings can be extracted from the Magistrate's decision. Firstly, that due to the size of "Mr Tran's truck it was not in a position to move rapidly out, that is in allowing two cars to go but not the utility of Mr Towler"; secondly, Mr Towler was travelling considerably faster than Mr Tran's vehicle; thirdly, that Mr Towler's speed led him to collide with Mr Tran's truck; and fourthly, that Mr Towler's vehicle came into contact with Mr Tran's truck. These findings reflect a combination of each party's version of events. For example, they evince an acceptance of Mr Towler's evidence that there were two cars moving in his direction, but also an acceptance of Mr Tran's evidence that Mr Towler collided with Mr Tran's truck. 26In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [63] McColl JA said: "Where, as in the present case, there is documentary material arguably supporting a party's case, that material must be considered in the judge's reasons in a satisfactory way." 27In the Local Court proceedings there was documentary material capable of supporting Mr Towler's case, such as photographs of the damage to the vehicles and a tendered diagram by Mr Tran. The Magistrate erred in giving these no consideration in his written reasons. 28Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187 ; (2006) 66 NSWLR 186, quoted with approval in Pollard v RRR Corporation Pty Ltd , said: "It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: "I believe Mr X but not Mr Y and judgment follows accordingly". That is not the way in which our legal system operates." 29On the issue of balancing conflicting witness accounts, Hall J said in Walker v Lee at [74]: "In a case involving disputed evidence between two eye-witnesses (in this case the parties to the proceedings), it is commonplace for the tribunal or court determining the proceedings to assess the reliability of the evidence of one of the parties over the other and, where possible, take into account any corroborative evidence. The fact that an independent witness gives the same version of events as that given by the claimant in the Local Court is obviously an extremely important matter to be brought into the resolution of the matter." 30Credit was in issue in the Local Court proceedings. It appears that the Magistrate preferred Mr Tran's evidence because his Honour found wholly in his favour. His Honour erred in law by not giving reasons as to how he had come to prefer Mr Tran's evidence. In particular, his Honour gave no reasons as to why he did not accept the evidence of Mr Dransfield, who was not a party to the proceedings. (I accept there were allegations in the lower court of collusion with Mr Towler; however these were denied by Mr Dransfield at T38). 31Furthermore , the Magistrate did not make any findings of fact as to where the impact between the two vehicles occurred and how it came to be that Towler's vehicle hit a parked car. Nor did he make any findings in relation to whether the damage to the vehicles was consistent with the findings he made as to how the accident occurred. All that was said was that the speed that Mr Towler was going was considerably faster than that of the truck and that "may have led one way or another to Mr Towler coming into contact with the truck". From Mr Towler's own evidence, he could have been travelling at 15 kph or 30 kph or somewhere in between. 32The defendant submitted that his Honour was alert to the issues and familiar with the evidence. However, this would not correct a failure to given reasons setting how his Honour's decision was reached. It is not clear from the transcript in any event that the Magistrate was familiar with the affidavit material prior to the hearing. 33It appears from the reasons that the Magistrate had accepted that Mr Tran had moved his vehicle from the stationary position from the driveway onto the roadway and that the speed that Mr Towler was travelling may have led to the vehicles coming into contact. It is my view that the Magistrate's reasons do not make findings of fact necessary to establish negligence on the part of Mr Towler. 34Further, Mr Towler's cross-claim pleaded that there was contributory negligence. While the Magistrate acknowledged that there was a possibility of negligence on the part of both parties, he failed to consider whether Mr Tran was guilty of contributory negligence or not. 35I agree with the comments of Meagher JA in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 that: "It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered." 36The requirement for reasons must be balanced with the need to keep the costs associated with a proceeding to a minimum. However, in this case it is my view that the Magistrate failed to give sufficient reasons and that failure amounted to an error of law. In particular, there was a failure to justify his finding of credit in favour of Mr Tran; his dismissal without reason of documentary evidence which might have favoured the plaintiff; a failure to determine whether contributory negligence arose and a failure to give adequate reasons for his finding that the plaintiff had been negligent. 37The appeal is upheld. The decision of his Honour Magistrate Coombs dated 11 April 2011 is set aside. The matter is remitted to the Local Court to be determined according to law. 38As a separate issue, Mr Towler seeks an order that the evidence of Mr Zero be permitted. Mr Zero was the owner of a parked car and employed as a security guard at Dan Murphy's. He is reluctant to give evidence and was not served with a subpoena. Whether or not he gives evidence is a matter for determination in the Local Court. 39Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff's costs as agreed or assessed.

The Court orders that: (1) The appeal is upheld. (2) The decision of his Honour Magistrate Coombs dated 11 April 2011 is set aside. (3) The matter is remitted to the Local Court to be determined according to law. (4) The defendant is to pay the plaintiff's costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2011