Cripps v Humphreys
[1998] QDC 276
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- Unreported Judgment
- Cripps v Humphreys[1998] QDC 276
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Cripps v Humphreys[1998] QDC 276
Cripps v Humphreys[1998] QDC 276
DISTRICT COURT | Appeal No 6 of 1998 Plaint No 1156 of 1996 |
APPELLANT JURISDICTION
JUDGE ROBIN QC
LARA VALDA CAROLINE CRIPPS | Plaintiff/Appellant |
and
ANTHONY WILLIAM HUMPHREYS | Defendant/Respondent |
Plaint No 550 of 1997
STROMBEN PTY LIMITED | Plaintiff/Respondent |
and
LARA VALDA CAROLINE CRIPPS | Defendant/Appellant |
TOOWOOMBA
DATE 01/10/98
JUDGMENT
HIS HONOUR: This is Lara Valda Caroline Cripps' appeal from the Magistrate's disposition of two actions. In one of them she was the plaintiff against the respondent, Anthony William Humphreys. In the other of them she was the defendant and the plaintiff was Stromben Proprietary Limited, which operates an Avis rent a car franchise, and was the owner of the vehicle Mr Humphreys was driving.
The actions arose out of a collision between two motor vehicles at the intersection of Herries Street and Hume Street in Toowoomba, at 9 o'clock at night.
The Magistrate ultimately resolved the actions by holding the plaintiff 30 percent responsible for the collision, and holding Mr Humphreys 70 percent responsible. That had the unpalatable consequence, from the plaintiff's point of view, that, given that her vehicle was the less valuable one, she ended up as the nett judgment debtor.
That the Magistrate apportioned liability is surprising, in light of the conduct of the joint trial of the actions, and in light of the reasons for judgment which he gave.
As to the conduct of the action, Mr Lynch asserted that it had been litigated on the basis that one side or the other would be wholly successful. I do not purport to have read the whole transcript, but there is some corroboration of that in the submission which Mr Quayle is recorded as making to his Worship at page 8 of the transcript, when (addressing second) he said:
“Now, Your Worship, in my submission what this matter distils to is that whichever version of events is accepted, one or other party entered the intersection against a red light and that party is therefore responsible for the collision. And once the finding is made as to who had the green light and who had the red's light, in effect the issue of liability falls into place”
The drivers' versions were conflicting in the extreme, each of them claiming to have been proceeding towards the intersection in a westerly direction along Herries Street.
Ms Cripps, and her witness, who was her brother, claimed that the respondent, Mr Humphreys, was proceeding towards the intersection in a southerly direction along Hume Street. The Magistrate described the Cripps as credible witnesses, Ms Cripps in particular.
On the other hand Mr Humphreys was described as hazy, confused and, in a respect the Magistrate identified, inconsistent, so that the Magistrate concluded his assessment: “I remain to be convinced as to the truth of his testimony”. Mr Humphreys had two corroborating witnesses, one of whom - although providing a light moment at the trial when, according to Mr Lynch, she said she had been tying her shoelaces at the time of the collision - “lacked the vigour of a truthful witness”, according to the Magistrate. As to the other corroborating witness, although she was described as credible, the Magistrate said that in the light of his overall findings, he could “take the topic of her testimony no further”.
It appears to me inevitable, indeed Mr Quayle's helpful written submissions on the appeal accept it, that the Magistrate accepted Ms Cripps' evidence. His conclusion before his ultimate “apportionment of blame” was as follows, and I quote from page 4 of the reasons he prepared.
“Overall, I find that the plaintiff in Action Plaint 1156 of ‘96 has proven their case to the requisite standard of proof and further that they have successfully mounted a defence to the Action 550 of ‘97 which I find has not been proven to the requisite standard of proof, that being on the balance of probabilities. The defendant, Humphreys has failed in the duty of care as outlined in the particulars in Plaint 1156 of ‘96. I give judgment for the plaintiff in Plaint 1156 of ‘96.”
There is thus a finding of negligence against Mr Humphreys, but none, except as might be implicit in the apportionment, against Ms Cripps. Nowhere does his Worship identify any respect in which Ms Cripps' standard of driving fell short of that which was expected of her. Mr Quayle's submissions state that she was anticipating a light in front of her turning green and might have gone through when it was still red or at an unexpectedly early point in the green cycle.
He points to evidence suggesting that she became aware far too late of Mr Humphreys in his vehicle on her right. It may be accepted that compliance or otherwise with traffic regulations is not definitive of the duties and civil liabilities of drivers and that Mr Quayle's clients were not bound to fail in having negligence found against Ms Cripps simply because Mr Humphreys was going through a red light.
I understand Mr Quayle to submit that it is implicit in the Magistrate's reasons and judgment, which he submitted and doubtless correctly, consisted not only of the prepared reasons but also of the handwritten notes of the Magistrate's judgments that a finding of negligence was made against Ms Cripps.
While there may be cases in which such important findings are implicit, I am not persuaded that this is one. If a finding of negligence is to be made against a litigant one would expect that, as in the instance of Mr Humphreys, there would be some identification by the Court of the particulars in which there was negligence. So far as Ms Cripps is concerned, there is neither any direct attribution to her of negligence nor any attribution to her of particular respects in which she failed to drive with the requisite degree of care. I am at a loss to explain why the Magistrate made an apportionment in the circumstances.
It is not necessary in this appeal to decide whether or not the state of the pleadings, which made no reference to contributory negligence, precluded his Worship's making an apportionment, as Mr Lynch submitted in reliance on Christie v. Bridgestone Australia Proprietary Limited (1983) 33 South Australian State Reports at 377, following Fookes v. Slaytor, (1978) 1 Weekly Law Reports 1293, and distinguishing a longstanding decision of Wanstall J, James v. McCarthy, (1958) QWN 32. The local decision which the South Australian Appeal Court described as obiter in this respect is to the effect that contributory negligence need not be pleaded for a Court to be entitled, if not required to give effect to the statutory contribution regime.
Perhaps there should be some qualification. I have suggested myself in argument that where a defendant specifically waives any entitlement to have contribution assessed against a plaintiff, if he, the defendant is adjudged negligent, I am sure in such a case the Judge would respect the litigant's wishes. My own view is that in the present circumstances where particulars of negligence were alleged mutually by and against Ms Cripps and Mr Humphreys, it was open to the Court without any specific plea of contributory negligence to apply the statute.
No party, on the appeal, has shown any interest in having the matter, which does not involve a great amount of money, referred back to a Magistrate for re-hearing.
As Mr Quayle submits, it is only in an unusual case that an apportionment of negligence is varied on appeal. He cited McPherson v. Whitfield, (1996) 1 Queensland Reports 474 at 485 and Pennington v. Norris, (1957) 96 CLR 10 at 15. Mr Quayle submitted that the duty of this Court is merely to see whether there was evidence upon which the Magistrate might, as a reasonable tribunal, have come to the conclusion to which he did come, a conclusion that there ought to be an apportionment. I am willing to accept for the purposes of this judgment that Mr Quayle is right, that there was evidence on which the Magistrate could have found Ms Cripps negligent.
I cannot, however, overlook that the Magistrate failed to make such a finding and that nothing in his reasons suggests he saw himself as having any basis available on which he could have made such a finding.
In those circumstances, I think there is a basic error of principle in his reasoning. I cannot explain the apportionment which was made, nor can this Court let it stand. The consequence is that the appeal is allowed and presumably with costs.
I will hear the parties as to what order ought to be made, but I would assume that in Plaint 1156 of 1996 there should he judgement for the plaintiff for $4,430 and that in the other action 550 of 1997, the order should be that action is dismissed with costs.
Do I have to work out anything else, Mr Lynch?
MR LYNCH: I do not think so, Your Honour.
HIS HONOUR: I do not know how to work out costs on the Magistrate's Court scale.
MR LYNCH: It should be Your Honour that costs should be taxed. Your Honour, under that, I think there is-----
HIS HONOUR: I think they have probably got to be worked out. Is the best thing for me to leave it to you and Mr Quayle? If I make those orders; and also liberty to apply, then if you have to come back to the District Court to work it out, you can?
MR LYNCH: Yes.
HIS HONOUR: It is probably going to be enough if your client gets her costs of the action as quantified by the Magistrate. Were those reduced because of the apportionment? Did that take you down to a lower scale?
MR LYNCH: He adjourned one lot of costs for taxing and the other; that was on a subsequent day, I think, that is the handwriting. That might be the more time efficient way of doing it, your Honour, just order costs on scale and give liberty to return to the District Court given that it was worked out last time.
HIS HONOUR: All right. Well, that is what I will do. Right. Thanks for your assistance, gentlemen.
MR LYNCH: Thank you, Your Honour.
MR QUAYLE: Thank you, Your Honour.