Clark v Eadie [2000] TASSC 32

Foster v Simpson 21/1965; Wiggins v Tasmanian Breweries Pty Ltd 45/1975; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, followed.

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588, considered.

Judgment Number: [2000] TASSC 32

1 The appellant appeals against a judgment entered against him in the Magistrates Court upon a finding that the appellant's negligent driving caused damage of $4,480 to the respondents' motor vehicle.

2 The appeal is pursuant to the Magistrates Court (Civil Division) Act 1992, s28, which provides that on the hearing of an appeal a judge of this Court, "may make such orders as are appropriate in the circumstances". That Act establishes a civil division of the Magistrates Court to replace the Court of Requests as constituted by the Local Courts Act, 1896. As with an appeal from the Court of Requests pursuant to the Local Courts Act, s123, the Magistrates Court (Civil Division) Act 1992, s28, confers a right of appeal without expressly confining its ambit. There is no reason to conclude other than that Parliament intended that the ambit of an appeal from the Magistrates Court would be the same as the ambit of an appeal from that Court's predecessor, the Court of Requests.

3 It is an appeal stricto sensu, Foster v Simpson 21/1965. I derive the following propositions from that decision and Wiggins v Tasmanian Breweries Pty Ltd 45/1975.

4 I must determine this appeal in accordance with the facts and the law as they exist at the date of the hearing, but my jurisdiction in relation to findings of fact which are challenged is not otherwise circumscribed.

5 It is my duty upon the hearing of the appeal to form my own judgment on the facts so far as I am able to do so, however, this is subject to the well known limitation that an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the court of first instance, by reason of having seen and heard the witnesses, could not be sufficient to explain or justify that court's conclusion.

6 The above proposition is in line with what was described as the traditional view in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 where Gibbs CJ, Jacobs and Murphy JJ said at 551:

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."

In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588 at 613, par82, the above passage was cited with favour by Kirby J. I pay heed to the concern there expressed by Kirby J that an appellate court should not allow the mere incantation of decisions, such as Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472, to deprive it of its power and duty to review factual conclusions. Those decisions relate to the caution an appellate court should have about rejecting a trial judge's finding based on credibility.

7 With those matters in mind, I turn to the evidence. The accident which is the subject of these proceedings occurred on the west-bound carriageway of Victoria Bridge, Devonport. At the time the respondents' vehicle, a Daihatsu Charade sedan, was being driven by their daughter, Emma Eadie. David Sheehan was a front seat passenger in the Charade. Linda Mason was driving a vehicle about five to ten car lengths behind the Charade. She was an independent witness to the accident. Whilst there are some inconsistencies between the evidence given by Ms Eadie, Mr Sheehan and Ms Mason, the common elements of their evidence are significant and compelling. Their evidence was that prior to the accident the Charade and a truck driven by the appellant were travelling side by side across the bridge, the Charade in the left hand lane and the truck in the right hand lane. The truck signalled via its indicator lights that it was to move left and shortly thereafter did so. As the truck moved to the left the accident occurred, it being precipitated by the truck striking the right rear corner of the Charade.

8 Ms Eadie and Mr Sheehan both gave evidence that when the Charade was alongside the truck they observed the truck indicate that it was moving left. Mr Sheehan said he told Ms Eadie to sound the horn of her vehicle and to put her foot down and she did so. This did not deter the truck from moving left and the Charade was unable to clear the truck before the truck had moved sufficiently far left to strike the right rear of the Charade.

9 The oral evidence that the front left side of the truck struck the right rear corner of the Charade was supported by a photograph taken of the Charade on the day after the accident which shows damage in that area. The damage is consistent with the type of damage which would be expected to result from the Charade's contact with a bullbar similar to that on the front of the appellant's truck.

10 The appellant gave evidence. He denied that the accident occurred in the manner described by the three witnesses I have referred to. In brief, he said that the accident occurred after he had safely manoeuvred his truck from the right hand lane to the left hand lane, and it occurred because Ms Eadie tried to pass his truck on the inside. The appellant was adamant that there had been no collision between the front left of his truck and the right rear of the Charade. He said that was impossible. He said that following the accident he observed that there was no damage caused to the right rear of the Charade. He was quite definite about this when pressed about it in cross-examination.

11 The learned magistrate's reasons for his decision run to six pages and I will not repeat them. In brief, he accepted the gist of the evidence of Ms Eadie, Mr Sheehan and Ms Mason, and rejected the evidence of the appellant. In rejecting the appellant's evidence he in substance said that it was apparent from the exactness of the appellant's evidence of measurements and speed, that he had reconstructed his evidence. He said that he was not at all impressed by the appellant's evidence.

12 Eight grounds of appeal are pressed on behalf of the appellant. The fundamental proposition that underpins the appeal is that the learned magistrate failed to give adequate reasons for his acceptance of the evidence of the respondents' three witnesses and his rejection of the evidence of the appellant. There is ample authority that a court from which an appeal lies must give adequate reasons for its decision. As observed in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 by Gray J at 18, the reasons will be inadequate if the appellate court is unable to ascertain the reasoning upon which the decision is based. In this case I have no difficulty whatsoever in understanding the learned magistrate's reasoning process. The evidence of the respondents' three witnesses was broadly consistent and the learned magistrate accepted that evidence. In doing so it was not necessary for him to deal with all or any of the inconsistencies between their evidence, save insofar as it was fundamental to a finding of negligence made against the appellant. No inconsistencies fall into that category. In the circumstances of this case, in rejecting the appellant's evidence, it was not necessary for the learned magistrate to say more than that he accepted the contrary evidence of three witnesses. In fact, he explained that he rejected the evidence as, in his view, it had been reconstructed by the appellant. I agree with the learned magistrate's rejection of the appellant's evidence and add that I would unhesitatingly have done so for the reasons already mentioned and also because the preponderance of the evidence before the court, including the photos, confirms that the Charade was damaged on the right rear corner in the accident. The existence of that damage supports the respondents' case and contradicts the appellant's case. The existence of that damage also casts considerable doubt on the reliability of the appellant's evidence, as he said that the damage was definitely not there after the accident.

13 Acceptance of the appellant's version of how the accident occurred would involve accepting that Ms Eadie chose to undertake a manoeuvre which was fraught with danger, that is, passing between the left hand side of the appellant's truck and the side of the bridge. Had she wanted to pass the appellant's truck, on his evidence, she could have moved to the vacant right hand lane in order to do so. In the absence of evidence of a reason for Ms Eadie to drive in such a bizarre manner or evidence which otherwise supported the appellant's version of how the accident occurred, and in the face of the contrary evidence of the respondents' witnesses, the learned magistrate was bound to reject the appellant's evidence. Having done so, the learned magistrate found that particulars of negligence (a), (e), (f) and (h) had been established, that is, that the appellant had failed to keep any proper look out; that he drove or attempted to drive from the right hand west bound lane into the left hand west bound lane without ensuring that it was safe to do so; that he changed lanes when it was unsafe to do so; and that he failed to exercise reasonable care and skill in the management of the truck. These findings flowed inevitably from the learned magistrate's decision about how the accident occurred and did not require further elaboration.

14 What I have said is sufficient to dispose of all of the grounds of appeal. However, I should specifically mention ground 2. That ground asserts that the learned magistrate erred in finding that the driver of the respondents' vehicle was not negligent to any degree. That ground is misconceived. Once the learned magistrate was satisfied on the balance of probabilities of the appellant's negligence, it was not necessary for him to consider whether Ms Eadie's driving was also negligent. She was not a party to the proceedings. It was not pleaded that she drove as the agent of the respondents and the evidence did not establish that she was their agent. Whilst she had their permission to drive the car, there was no suggestion that she was driving for their purposes; Pratt v Connelly A33/1994, (1994) Aust Tort R 81 - 283. In the circumstances, I have not addressed the question of whether Ms Eadie's negligent driving contributed to the accident, although I should say that my preliminary view is that it did not.