Saffigna v Little[2022] QCATA 161

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This appeal concerns a motor vehicle accident involving a small pantech truck being driven by Mr Scaffigna and a motorcycle being ridden by Mr Little. The accident occurred on Zillmere Rd, near the intersection of Zillmere Rd and Sandgate Rd. Mr Little alleges that when he turned left into Zillmere Rd from Sandgate Rd, Mr Scaffigna’s truck was parked to the left side of the road then then the truck started to make a right turn across his path of travel. He moved to his right, but the left side of his bike caught the side of the truck, and he came off the bike with the bike landing on top of him.
2. [2]
   Mr Scaffigna denies stopping in the left lane and says that after he turned into Zillmere Rd, he slowed the truck with the right indicator on to make a turn into Virginia Palms, which is a few hundred metres along Zillmere Rd from the intersection with Sandgate Rd. Just as he started to make the turn, he looked down to his right and saw the bike on top of Mr Little on the road, stationary near to the centre line. As soon as he saw Mr Little, he immediately stopped the truck and got out and rendered assistance. He was unaware of any collision, and felt nothing untoward in the truck before seeing Mr Little on the road.
3. [3]
   The versions of the accident given by both parties are consistent with versions given to police when the incident was reported. No charges were laid for driving without due care an attention or any other breach of the traffic regulations against either party.
4. [4]
   Mr Little filed a minor civil dispute claim against Mr Scaffigna claiming he was negligent in the driving of the truck which caused the incident. He claimed damages for the repairs to the bike and replacement of safety clothing and helmet. The matter came on for a hearing before a tribunal adjudicator in November 2020. The learned adjudicator considered the versions of both parties and detailed photographs produced by Mr Little, including screen shots of Zillmere Rd with markings as to the location of the incident. Having considered the evidence the learned adjudicator found that Mr Scaffigna was negligent. He assessed damages and ordered Mr Scaffigna to pay to Mr Little the sum of $4,602.32.
5. [5]
   Mr Scaffigna has filed an application for leave to appeal or appeal against the learned adjudicators decision. He essentially submits that the findings of fact as to the cause of the incident were not open on the evidence before the learned adjudicator. This is a difficult hurdle for Mr Scaffigna because the appeal tribunal will not lightly interfere with findings of fact by the original decision maker.
6. [6]
   Also as this is an appeal brought under s.142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[1] The appeal tribunal will not interfere with findings of fact which were open on the evidence before the decision maker.^[2] An application for leave to appeal is not simply an opportunity to re-activate the arguments made therein below in the hope of obtaining a different outcome.^[3]
7. [7]
   The learned adjudicator made specific findings as to why he accepted the evidence of Mr Little in preference to Mr Scaffigna. In particular he referred to the following:

   1. (a)
      the reference to the truck being on the side of the road;
   2. (b)
      photos produced by Mr Little as to the positioning of the truck as it attempted to make a u-turn across the west bound lane into the east bound lane and the fact that Mr Little reported the incident to police;
   3. (c)
      independent evidence that Mr Scaffigna said words to the effect that he did not see Mr Little, and he thought he might have killed him;
   4. (d)
      the photos of the damage to the bike were consistent with the version of the collision proffered by Mr Little;
   5. (e)
      given the differential in size of the motorcycle compared to the truck it is unsurprising that there is no damage to the truck.
8. [8]
   It is self-evident that when one has regard to the evidence given at the hearing that the conclusions reached by the learned adjudicator were open on the evidence. Despite that Mr Scaffigna submits that the learned adjudicator failed to consider other objective evidence which supported his case. This included:

   1. (a)
      the photos of the damage to the bike were from the bitumen surface and not the truck;
   2. (b)
      reasoning that if Mr Littles version is correct the collision would have been more in the nature of a T-bone rather than side on;
   3. (c)
      that the truck had barely started the right turn when Mr Scaffina saw Mr Little on the surface of the road;
   4. (d)
      a conclusion that Mr Little and the bike to end up adjacent to the cab of the truck he must have come off or laid it over well before Mr Scaffigna commenced the turn;
   5. (e)
      not finding that this must have occurred for the momentum of the bike to cause them to slide forward on the road surface, which obviously happened because of the type of damage to the bike and Mr Little’s protective clothing.
   6. (f)
      failing to find that as the following vehicle, Mr Little simply failed to see that the truck was intending to make a right turn and was therefore responsible for the outcome and damage to his bike;
9. [9]
   Mr Scaffigna submits that the consequence of such findings should have led to the tribunal to conclude that there was no collision at all, and he was not responsible for the incident resulting in the damage to the bike and clothing.
10. [10]
    Although the point was not agitated below, there is a duty of care on the driver of a vehicle turning right to lookout behind, in the side mirrors, to ensure it is safe to do so. There is no evidence this occurred. Also, I note from the photographs there is damage to the fuel tank of the bike, which was caused from the road surface.
11. [11]
    However, repeating what I said during the course of the hearing and reiterated above, even if I were to come to a different view about the cause of the accident, unless the conclusions reached by the learned adjudicator were not supported by the evidence, I am unable to overturn findings of fact. As the High Court (French CJ, Bell, Keane, Nettle and Gordon JJ) said in Robinson Helicopter Company Incorporated v McDermott:[4]

A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences.

12. [12]
    When applying that test, which I must do, it cannot be said that the learned adjudicator’s findings of fact are demonstrably wrong on the evidence. That being the case, there is no basis to grant leave to appeal.
13. [13]
    Leave to appeal is refused.