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Santo v Davidson QCATA 27
Santo v Davidson  QCATA 27
Gary Bruce Santo
Kristy Marie Davidson
On the papers
20 February 2017
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – WHERE FACTS IN DISPUTE – where the tribunal found that the appellant was liable for the parties’ collision – where the parties gave conflicting versions of events – whether the tribunal’s inferences of fact were open on the evidence – whether leave to appeal should be granted – whether the appeal should be allowed
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 142(3)(a)(i), 146
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) rr 141, 153
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Biogen Inc v Medeva Plc (1996) 36 IPR 438
Caswell v Powell Duffryn Associated Collieries Ltd  3 All ER 722
Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274
Dawson v Westpac Banking Corporation (1991) 104 ALR 295
Filippou v The Queen (2015) 256 CLR 47
Fox v Percy (2003) 214 CLR 118
Mahon v Air New Zealand & Ors (1983) 50 ALR 193
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Warren v Coombes (1979) 142 CLR 531
Woden Valley Glass v Psaila (1993) 44 FCR 140
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- In 2015, the appellant’s motorcycle and the respondent’s car collided with each other at a busy Townsville crossroads. He was turning right. She was overtaking a line of stationary oncoming traffic on the outside. They cross-claimed their panel beating costs from each other.
- The tribunal held the appellant 100% liable on the basis that the most likely explanation for the incident was his failure to keep a proper lookout, rather than the respondent’s speed or manner of driving. Its decision was not based on the resolution of conflicting versions of the parties nor their comparative performance as witnesses, but rather on an analysis and evaluation of their objective conduct in the circumstances leading up to the collision.
- Thus, the major issue on appeal is not as much the correctness of any major or minor facts but whether, based on them, the tribunal impermissibly drew a wrong inference of ultimate fact; that is, that the appellant was negligent and liable for the damage caused by the collision. As this is a question of law, it is decided under s 146 QCAT Act, not by way of rehearing.
- The onus is on the applicant, as a dissatisfied party to minor civil dispute proceedings applying for leave to appeal, to demonstrate an arguable case of substantial injustice due to legal, factual, mixed or discretionary error productive. These different species of appellable error often overlap. For example, the same error can be characterised as, on one hand, deciding the wrong issue or ignoring relevant evidence (errors of law) and, on the other, acting unreasonably or not giving enough weight to compelling contrary evidence (questions of fact).
- A decisive finding or inference will not to be disturbed as unreasonable unless there is no or insufficient evidence on the point or it all pointed the other way.
- However, in principle, there is no reason why a legal error in arriving at a significant intermediate finding of fact should not be characterised as a substantial miscarriage of justice if, but for the error, the ultimate finding might not have been made at all or to the contrary.
The dispute in context
- The collision occurred at the T-intersection of Fulham Road and Hivers Street in the suburb of Vincent on 7 March 2015. Fulham Road is a level and sealed single lane highway divided by a median strip. The respondent was in the left hand passing lane heading west along Fulham Road towards the intersection overtaking a stationary line of vehicles to her right. The appellant was turning right from the inside eastbound lane of Fulham Road into Hivers Street, on which the prescribed speed limit was 60 kilometres per hour. The road conditions were dry and visibility clear. The parties were the sole occupants and only witnesses.
- The appellant alleges that the respondent caused the crash because she “came out of nowhere” around stationary traffic at an “unnecessarily high speed” and “collided into the front wheel of my motorcycle” because she was “illegally (using) the bicycle lane to travel through … the intersection …”
- In the version he gave police at the scene the appellant claimed to have:
“…turned left off Nathan Street into Fulham Road and was heading down Fulham Road to turn right at Hivers Street. The intersection was blocked by cars.
I went to go out between two vehicles, I was upset at one of the drivers of these vehicles for blocking the intersection.
As I went to go across the intersection from between the two vehicles a car has come out of nowhere doing about 30-40km/hr and has seen me and braked and hit the front of my bike and took it out from underneath me.
I believe that the driver of the blue car shouldn’t have been coming around the vehicles like she was and that the cars should not have been blocking the intersection.”
- The appellant later asserted that the respondent was going significantly faster at the time of the accident than his first estimate.
- The respondent, by contrast, attributes the incident to the appellant’s failure to give way to oncoming traffic when turning right. She deposes to having already overtaken four to five stationary cars in the left lane when the appellant unexpectedly pulled out from her right and says that the appellant impliedly admitted fault by apologising for not seeing her while they were waiting for the police to arrive.
- From the position of the respondent’s car after the impact and the concentration of the damage around the front right hand corner of her car the police concluded that she was able to safely overtake and breached the appellant for failing to give way. The infringement notice was later rescinded on review and the respondent was charged with unlawfully overtaking traffic turning right on the left hand side in an unmarked lane.
- In these circumstances, the tribunal had to identify, on affidavit and submissions without cross-examination, the provable facts of the case on the available evidence and decide whether (a) either or both parties caused or contributed to the damage, (b) and apportion legal liability between them in dollar or percentage terms.
- Liability depended on whether the appellant or the respondent had failed to see where the other one was in time to prevent the impact. The inferences drawn from materially agreed facts, rather than credibility, were the main determinants. To succeed, the appellant had to convince the tribunal to accept his interpretation of the facts.
The findings of fact
- The tribunal awarded the respondent the full costs of repair on the basis that the agreed facts indicated that the appellant was wholly responsible.
- Despite the appellant’s claims to the contrary, the tribunal found that speed was not really an issue because even he conceded that the respondent was travelling at about 30-35 kilometres per hour in a 60 kilometres per hour zone just before the collision.
- On the basis of the logical assumption that the appellant would probably have given way to an oncoming vehicle overtaking a line of traffic at a “moderate” speed, the tribunal reasoned that the only rational explanation for the accident was the appellant’s failure to see her (probably due to inattention) until it was too late to stop. In other words, the appellant could not satisfactorily explain why he did not see the respondent who – even if she was not where she was legally supposed to be – was nonetheless there for long enough to be seen and in light of that turning right in front of her was an unreasonable risk to take when the alternative option was staying put until it was safe to proceed.
- Consistently with its conclusion that his liability lay mostly in not keeping a proper lookout, the tribunal rejected the appellant’s suggestion that he would have been able to stop before hitting the respondent if she had not been illegally overtaking in a bike lane.
The alleged errors
- There are a number of more specific grounds to deal with before considering whether the tribunal’s liability finding is marred by vitiating error. They are that the tribunal:
- (a)“repeatedly” misstated the names of and was possible confused about which party was which;
- (b)mistook the respondent’s estimated speed for his;
- (c)failed to consider key pieces of evidence adverse to the respondent such as the inaccuracy of the respondent’s map of the scene and the police action taken against her;
- (d)wrongly acted on the assertion of the respondent’s insurer that the collision occurred on a ‘two-lane road’, which it didn’t;
- (e)failing to consider photographic skid mark evidence relevant to resolving the speed issue; and
- (f)failing to consider his submissions about alleged road rule breaches by the respondent and accord proper significance to the change in attitude of the police.
- The transcript discloses the misnomer complaint in ground (a) occurred only once (not repeatedly) and was promptly corrected. Any initial confusion did not cause or substantially contribute to any vitiating error in the decision.
- Nor did the tribunal’s misstatement of the appellant’s affidavit evidence about the speed of the respondent’s car result in substantial injustice. The tribunal was patently aware of how fast he variously alleged the respondent had been travelling at the material time.
- The appellant’s claim in ground (c) that he was denied the opportunity of refuting an important piece of the respondent’s evidence he considered “false and misleading” is not made out either, because that very point was made at T1-15.
- The tribunal might be criticised by some for failing to make a particular credit finding about whether the respondent lied (or was mistaken) about whether she was in a marked overtaking lane or not before the collision because that an adverse finding was likely to have cast doubt on other aspects of her story but reasons, especially when given ex tempore, can never fully state all the considerations that influences a decision-maker to prefer one explanation for what happened over another and unexpressed conclusions are relevant only to the extent they make any material difference. Liability depended on the standard and safety – not the respective or relative lawfulness – of the parties’ manner of driving.
- The appellant claims in ground (d) that the tribunal should have (but did not) give him a chance to explain the relevance of the police report he had obtained. This complaint is directly contradicted by the transcript:
BENCH: Yes. Thanks, Mr Santo. Is there anything else that you wish to say? You’re free to do so, and I don’t want you to feel that you should be hurried in – I suspect that you’ve said everything you wanted to say. I mean, I feel there’s a limit as to what you could say about a case ---
MR SANTO: Yeah.
BENCH: --- where the facts are basically agreed between the parties. Nothing more from you, then, Mr Santo? Or is there?
MR SANTO: Not that I can see, your Honour.
- In any case, the appellant’s point is that the decision of the police to breach the respondent instead of him logically confirms his contention that the respondent was not driving through the intersection in the left of two marked lanes as she told police but was, in fact, overtaking in a bike lane. However, as already noted, at issue was the quality not legality of the parties driving and whether either (or both) had breached their duty of care to the other as a road user – not whether one of them had broken a road rule.
- Moreover, the infringement action is merely opinion evidence of a fact that was, at best, relevant to the main issue. No doubt, wrongly rejecting or disregarding corroborative evidence can affect the legitimacy of a decision, but as the tribunal correctly said, as the matter was proceeding before it as a minor civil dispute claim rather than as a traffic violation, the police interpretation of events was, even if admissible, neither conclusive nor binding. There is no basis on which leave to appeal ought to be granted on this ground.
- In ground (e), the appellant says he is “concerned” that a misstatement by the insurer’s representative that the road in question was two lanes wide “may have been taken into account”. Several photos accurately depicting the accident site were in evidence. The tribunal was clearly wary of paying too much heed to the assertions of vested interests. There is no indication that it was unwittingly led into error about the road markings or that any mistake made any material difference to the objective liability finding.
- Nor, is there any substance in the appellant’s assertion in ground (f) that the tribunal “declined to consider” a photograph of the length of the skid marks said to be left by the respondent’s car. At 1-8:11-34, the transcript records:
MR SANTO: … I couldn’t really judge what speed she was going, but by the size of the skid marks she was travelling [indistinct]
BENCH: No, no, no, no (…)
MR SANTO: Yeah.
BENCH: You’re not an expert on speed marks. That’s a –
MR SANTO: No. No.
BENCH: No. Okay. You can’t look at a speed mark and say Ms Davidson was travelling at a speed of 72 kilometres or 60 kilometres or anything like that.
MR SANTO: No.
BENCH: You were judging as a road user---
MR SANTO: Yeah.
- In giving its reasons, the tribunal found that:
… Ms Davidson was travelling at a speed which was moderate in the circumstances, and I conclude that based on her evidence and Mr Santo’s evidence, but also there was no reason for her to drive other than at that speed or perhaps even less because the traffic lights were red…
- There is no reason for concluding the tribunal did not read the tendered affidavits or consider the photographs. It simply did not accept that the skid marks were as significant to liability as the appellant does. The tribunal was clearly mindful of the skid mark evidence and its assessed probative value.
- At any rate, the length or direction of the skid marks is no more than retrospectant circumstantial evidence of speed which in the end was found not to be an issue. Even if it was without expert analysis any nexus between the skid marks and the respondent’s speed was purely speculative.
- This is not a case like Fox v Percy, where the High Court relied on contradicted and unexplained skid marks to overturn a finding in favour on the appellant’s contrary evidence about which side of the road she was on at the point of impact.
- There is no sign the tribunal ignored, misunderstood or misinterpreted relevant and reliable information, acted on false evidence, was influenced by misinformation or wrongly excluded evidence.
- Finally, ground (g) complains that the tribunal failed to address in its reasons whether the respondent had breached the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).
- Regulation 141 prohibits overtaking a vehicle to the left and regulation 153 penalises drivers who drive in a bicycle lane for an impermissible distance or purpose. But the tribunal was not hearing traffic offence charges – it was deciding where the loss and resulting damage from the collision should fall. In any case, in saying, “I conclude that I can find no fault in the driving of Ms Davidson” the tribunal implicitly found that irrespective of if the respondent had breached any regulation she was not civilly liable for the crash.
- In the tribunal’s view, the lane markings, the discontinued breach proceedings and the story the skid marks told had no relevant bearing on the liability issue because the appellant’s inattention had nothing to do with how fast the respondent was going, where she was on the road or what marks she left. The remaining question is whether, in taking this approach, the tribunal drew impermissible inferences.
The ultimate inference
- In a running down case, where credibility is not decisive, an inference of negligence is within the permissible range if it is reasonably capable of being drawn from the available body of circumstantial evidence including what the parties were doing and their relative position on the roadway.
- There is no error of law in merely drawing a ‘wrong’, illogical, or even arguably perverse inference from evidence capable of sustaining (without compelling) a finding either way or at all. However, the process of deductive reasoning from effect to cause fails if there is no (or negligible) objective evidence supporting a decisive inference.
- While the appeal tribunal is in a good position to detect and correct inferential errors, it is not justified in substituting its own conclusion if the tribunal’s can rationally be reconciled with (or at least is not untenably inconsistent with) the agreed or evidence-based findings of fact. This acknowledges the reality that appeal tribunals are not necessarily better than anyone else at telling the difference between fact and fiction in a given case; especially ones depending on value judgments or matters of degree which have no uniquely correct answer (such as whether damage was caused by substandard driving).
- A party may, of course, breach a duty to avoid taking an unacceptable risk even though it was created or increased by someone else. Here, the parties owed each other the same duty. Both of them were in jeopardy of being held liable for causing or contributing to the other’s foreseeable loss.
- The appellant claimed that the respondent was solely to blame because she should not have been where she was. He failed because the tribunal found that, regardless of any danger arising from the respondent’s unexpected position on the roadway, he was well placed to see and avoid instead of taking the risk she posed. The tribunal was amply entitled to act on that view of the evidence. Therefore, no legal error was made.
- Even on his own account, it was open to the tribunal to find that he breached his duty of care to the respondent not to collide with her by crossing her path when it was unsafe to do so. Taking an unreasonable risk with someone else’s safety is not excused just because they were doing the wrong thing themselves.
- Overall, the liability findings are consistent with, and supportable by, a reasonable interpretation of the evidence. The appellant had a fair hearing and justice was done according to the law correctly stated and applied to the agreed or probable facts. The tribunal’s order is, therefore, a fair and equitable resolution of the parties’ dispute and unimpeachable on appeal.
- Leave to appeal is granted. The appeal is dismissed.
 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355.
QCAT Act s 142(3)(a)(i).
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351 .
 Filippou v The Queen (2015) 256 CLR 47.
 Transcript at 1-16:35-39.
 Transcript at 1-7:43-46 and 1-8:1-12.
 Biogen Inc v Medeva Plc (1996) 36 IPR 438, 458 (Lord Hoffmann).
 Transcript at 1-23: 32-42.
 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588.
 Transcript at 1-24: 39-42.
 (2003) 214 CLR 118.
 Transcript 1-24: 42-43.
 Caswell v Powell Duffryn Associated Collieries Ltd  3 All ER 722, 734; Mahon v Air New Zealand & Ors (1983) 50 ALR 193, 219.
 Warren v Coombes  142 CLR 531.
 Dawson v Westpac Banking Corporation (1991) 104 ALR 295, 304.
 cf Woden Valley Glass v Psaila (1993) 44 FCR 140, 143.
 Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274, 284-6.
- Published Case Name:
Gary Bruce Santo v Kristy Marie Davidson
- Shortened Case Name:
Santo v Davidson
 QCATA 27
20 Feb 2017