Robinson v Moyle[2024] QCATA 95

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application for leave to appeal from the decision of a Member in a Minor Civil Dispute – Property damage caused by motor vehicle claim.^[1]  On 22 April 2022 the respondent filed in the Tribunal a claim for $763.37 for damage caused to his motor vehicle as a result of a collision with a motor vehicle driven by the appellant.^[2] On 18 October 2022 the Member, in an ex tempore decision, ordered the appellant to pay the respondent $320, for reason that she then gave.  On 31 October 2022 the appellant filed in the Tribunal an application for leave to appeal against that decision. 
2. [2]
   This is an example of a minor civil dispute, and as a result a party requires leave to appeal on any ground.^[3]  As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.^[4] In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1).^[5]  The Tribunal was also required to comply with the QCAT Act s 28 and s 29.  Leave is not generally granted just to reconsider findings of fact. 

Background

3. [3]
   It was common ground at the hearing that a collision occurred on 21 July 2021 between the vehicle owned and driven by the respondent and the vehicle driven by the appellant, when the appellant backed out of a parking space on the west side of Helen Street in Caloundra West, along which the respondent was driving, having just turned out of Mark Road East.^[6]  The respondent said that he had stopped when he saw the appellant backing out and that the appellant backed into his vehicle; the appellant said that, after she had backed out, she stopped, and the respondent then drove into her vehicle.  There was also a dispute about whether the damage claimed to have been caused by the collision was in fact caused by it. 
4. [4]
   The respondent claimed that the damage caused to his vehicle consisted of damage to the front number plate, and damage to the adjacent grill and bumper bar, both located in the centre front of his vehicle.  Photographs showing such damage were produced by the respondent, and appear consistent with the description of the damage in a quotation for repairs to the vehicle,^[7] and an invoice for the repairs, which had been undertaken before the hearing.  Unfortunately, the photographs are close-ups of the actual damage, and do not show the whole of the front of the vehicle, so that the position of the damage along the front cannot be identified from the photographs. 
5. [5]
   On the other hand, the appellant produced photographs of what was claimed to be her vehicle, showing a small dent in the rear wheel arch on the passenger side.  This she claimed was consistent with her account of what had happened, and inconsistent with the respondent’s account, which was that the point of impact was at the right rear corner of the appellant’s vehicle. The photographs show no visible damage at the right rear corner.  As well, when a claim was made by the respondent to the insurer of her vehicle, the claim was rejected by the insurer, on the basis that an insurance assessor, from the photographs of the damage, concluded that the damage to the respondent’s vehicle could not have been caused by the collision.  This assessment was made without actually inspecting the vehicles, and no detailed reasons for that conclusion were before the Member.^[8] 
6. [6]
   In response to this, the respondent said that the vehicle shown in the photographs produced by the appellant, although having the number plate of the vehicle being driven at the time of the collision by the appellant, was not the same vehicle.  There was no material before the Member showing the description of the vehicle which, according to the Department of Transport records, corresponded with that registration plate.  On the face of it, this is unlikely. 

Reasons of Member

7. [7]
   The member identified the matters in issue, referred to the absence of an inspection of the respondent’s vehicle by the assessor, and the absence of any expert evidence on behalf of the respondent.^[9]  She said that she was left with having to decide whether one party was telling untruths, but then said that she accepted that both parties were telling the truth as they remembered it, commenting that it was not unusual for people to have different recollections as to how things had occurred.  In those circumstances, she said that the best she could do was to split the claim and to order that the appellant pay half of the amount the respondent was asking for, a process which, with some rounding, produced this amount ordered to be paid. 
8. [8]
   This approach was unsatisfactory, for two reasons.  First, the fact that both parties were giving their honest recollection of what happened does not necessarily mean that both versions were equally reliable, and if they are inconsistent, it is still necessary to decide whether the party making the claim has, on the balance of probabilities, proved his or her case.  The law in Queensland does not recognise the biblical precedent.^[10]  Even if the QCAT Act s 13(1) allows some latitude in how minor civil disputes are resolved, there is Court of Appeal authority that the Tribunal is required to decide matters according to law, because it is a court of record.^[11]
9. [9]
   The other reason is that the Member, having correctly identified that there were two issues, appears to have failed to decide what the outcome was in relation to the second issue, whether the damage to the respondent’s vehicle was caused in the collision.  The issue was, presumably, caught up in the resolution of the whole matter by splitting the claim, but this just emphasises the unsuitability of resolving the matter in this way.  One can understand, in these circumstances, that both parties would have been dissatisfied with the way the matter was resolved, but there is no cross application for leave to appeal.

Submissions of the appellant

10. [10]
    The main argument on behalf of the appellant was that the Member had erred in failing to accept the rejection of liability by the insurer as showing that she was not liable at all for the damages claimed.  The fact that the assessor had so concluded, from an examination of the photographs of the damage, was said to be conclusive that the damage for which the respondent was claiming was not caused by the appellant.  For reasons I have given below, there is no substance to this argument. 
11. [11]
    The appellant also submitted that the fact that the photographs of her vehicle showed no damage to the rear right had corner of her vehicle means that the diagram prepared by the respondent, which showed that corner of her vehicle as the point of impact, must be wrong.  The only information before the Member about when these photographs were taken was that they were taken on or before 22 October 2021, because they were emailed to the insurer on that day.  This was about three months after the collision occurred.  As well, the appellant said that the respondent could not have seen her vehicle in this position, because immediately after the collision she had driven back into the parking space she had just left, that is, before he would have had time to get out of his vehicle and come to the front to look.   The appellant also challenged the reliability of the statement of the respondent’s witness, on the basis that much of its content was highly implausible, and it included information which must have been provided to him by the respondent. 
12. [12]
    The appellant, in response to the submissions of the respondent, repeated earlier submissions, and added that the only way the damage shown in the photographs of the appellant’s vehicle could have been caused in the collision was if it had been struck by the right front corner of the respondent’s vehicle, which would not have caused damage in the centre of the front of the respondent’s vehicle.  At one point the appellant put forward a diagram showing how that could have occurred, although that diagram was not before the Member.  It seems to me that it was put forward rather as a submission by the appellant. 
13. [13]
    During the oral hearing Mr Robinson conceded, eventually,^[12] that the respondent’s diagram was approximately correct in relation to the lead up to the collision, in that the appellant had been parked where shown, and had backed out, intending to go further to the south along Helen Street, towards the top of the diagram.  He also submitted that if the collision had occurred in the way described by the respondent at least one, and possibly both of the tail lights on her vehicle would have been broken, which was not the case.  It is obvious from the photographs of the appellant’s vehicle that that is not correct.  He also claimed that the Member had said at the hearing that she had not read the material.  In fact the transcript shows that the Member said at the start that she had read the material: Transcript p 2.  It is clear from the transcript generally that she was familiar with the content of the file. 

Consideration

14. [14]
    The issue as to how the accident happened boils down, relevantly, to whether the appellant backed into the front of the respondent’s stationary vehicle, or whether the respondent drove into the appellant’s stationary vehicle, after she had backed out of the parking space.  On either view of the matter, the appellant was negligent in failing to give way to another vehicle on the road, but on the latter version, there may will have been room for a finding of contributory negligence.  It would be quite unlikely however that any finding of contributory negligence would result in an apportionment of as much as fifty percent. 
15. [15]
    The problem with the photographs of the damage to the two vehicles is that the damage to the respondent’s vehicle would have occurred in the same place whether the appellant reversed into his stationary vehicle or he drove into the appellant’s stationary vehicle.  The diagram drawn for the appeal by the appellant’s husband, purporting to show the only way in which the appellant’s vehicle could have suffered the small dent shown on the left rear wheel arch in the photographs, really shows that it is quite unlikely that that damage was suffered in this collision.  That diagram shows that the appellant would have to have turned while reversing much more than ninety degrees, when she was intending to drive to the south, that is, towards the top of either diagram.  There was no obvious reason for her to have done so, and she gave no evidence that she had done so.  What that diagram really shows is that the accident would not have happened in the way shown in that diagram.  The more plausible explanation is that the dent to the left rear wheel arch was not caused in this collision. 
16. [16]
    That does leave the possibility that the damage to the respondent’s vehicle was caused in a collision which produced no real damage to the appellant’s vehicle.^[13]  On the face of it, that seems unlikely, but it may be simply a tribute to the durability of a Daewoo bumper bar, relative to the more fragile parts of the respondent’s Toyota which were cracked or broken.  It was common ground that there was a collision, and if so one would expect to see some damage, and the only real question is whether there was also pre-existing damage to the respondent’s vehicle, and the respondent’s claim was opportunistic.  That is possible, but on the evidence before the Member there was really nothing to provide any particular support for it. 
17. [17]
    One piece of evidence which was mentioned at the hearing by the respondent, but not in reasons by the Member, was that the respondent produced a statement from the driver of a truck following his vehicle, which on its face confirmed that the respondent’s vehicle stopped suddenly, and the appellant’s vehicle had backed into it.  The statement was witnessed by a Justice of the Peace, and was available to be taken into account even in the absence of the witness in person, although that was relevant to the weight to be given it.  The appellant submitted that there were reasons why the statement should not be accepted as doing more than repeating what the respondent had told the witness, and to some extent it may, but unless it is deserving no weight, it does provide some support for the proposition that the collision occurred essentially as shown in the diagram Attachment 1, and to that extent, it supports the respondent.   
18. [18]
    One difficulty which arises from the respondent’s photographs is that they do not include more general views of the front of the respondent’s vehicle.  However, the location of damage in the vicinity of the number plate suggests that the damage to the respondent’s vehicle was in the centre of the front of the vehicle.  On the face of it, that is consistent with the respondent’s version of how the collision occurred, at least.  It is also how one would expect such a collision to have occurred, whichever vehicle was stopped before the moment of impact.  I therefore consider that there is nothing in these photographs which would be the basis for a reasoned rejection of the proposition that the damage shown was caused in the collision.  That in my opinion makes the conclusion of the assessor, and of the insurer, on the face of it, of no real value. 
19. [19]
    It is not unusual for an insurer of the party claimed to have been at fault in a motor vehicle accident to reject liability for the damage caused, on the basis that the collision occurred in a different way, for which there is no liability.  That could be on the basis that there was no liability for any damage on the appellant’s version, or that, if the collision occurred in the way described by the appellant, that damage could not have occurred.  In the absence of more detailed reasons for the insurer’s rejection of the claim, the rejection in itself is of no significance.^[14]  I might add that, in a court bound by the rules of evidence, the opinion of the insurer (and of the assessor) would not even be admissible as evidence as to the truth of what was stated.  They would certainly not be conclusive, the proposition particularly relied on by the appellant. 
20. [20]
    On the whole, I consider that the better view of the evidence before the Member is that the damage to the respondent’s vehicle was caused in the collision.  That is so, whichever vehicle was stationary prior to the moment of impact.  The collision probably occurred more or less as shown in the respondent’s diagram, because that is how one would expect such a collision to have occurred, given what each driver was trying to do at the time. 

Conclusion

21. [21]
    In the circumstances therefore I consider that, although the process by which the Member arrived at her decision was inappropriate, and probably did involve an error of law, it is unlikely that the appellant suffered any real injustice as a result.  Indeed, I think that, if anything, it was the respondent who suffered some injustice, but in the absence of an application by him for leave to appeal, I cannot improve on his position.  It is therefore not appropriate that I should grant leave to appeal to the appellant. 
22. [22]
    I should mention that, despite the Tribunal having made the usual direction for an application to be made if either party sought to rely on fresh evidence on the appeal, neither party did so, yet both parties sought to put additional material, not before the Member at first instance, before the Appeal Tribunal.  I have mentioned a little of this material, but not relied on it as evidence in arriving at my decision. 
23. [23]
    There was an application by the appellant for a stay of the decision at first instance.  So far as I can see, that application was never determined, although the respondent told me that the payment ordered at first instance has not been made.  It does not reflect well on the appellant that that order, if it had not been stayed, was not obeyed.  For the sake of completeness, I dismiss the application for the stay.  I confirm the order of the Tribunal at first instance. 
24. [24]
    There was also an application for costs filed by the appellant, and adjourned to the hearing.  When I mentioned this, Mr Robinson said he was not ready to argue it, but from what he said it emerged that what he was seeking was compensation for the time he spent on the matter, as a result of which he was unable to pursue his occupation.  This is not what is meant by costs in the QCAT Act s 102, which is confined to costs in the conventional legal sense, that is, money paid to lawyers and necessary outgoings, such as a filing fee paid to the Tribunal.^[15]  The compensation sought by the appellant is not within the scope of s 102.  It may be that such compensation could be ordered by the Tribunal under the QCAT Act s 47(2)(c), but the pre-requisites for such an order under that provision have certainly not been established.  The application for costs is also dismissed.