Webber v Joamco Stockfeeds Pty Ltd
[1999] QDC 137
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- Webber v Joamco Stockfeeds Pty Ltd[1999] QDC 137
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Webber v Joamco Stockfeeds Pty Ltd[1999] QDC 137
Webber v Joamco Stockfeeds Pty Ltd[1999] QDC 137
DISTRICT COURT | Appeal No 2 of 1999 |
APPELLATE JURISDICTION
JUDGE SAMIOS DCJ
RAYMOND ALEXANDER WEBBER | Appellant |
and
JOAMCO STOCKFEEDS PTY LTD | Respondent |
TOOWOOMBA
DATE 07/05/99
DAY 1
JUDGMENT
HIS HONOUR: This is an appeal subject to leave from the decision of the learned Magistrate at Toowoomba, given on 14 December 1998, in which the learned Magistrate gave judgment in favour of the plaintiff against the defendant for 70 per cent of the plaintiff's claim against the defendant and costs and interest.
The background to this appeal is that the plaintiff commenced proceedings in the Magistrate's Court at Toowoomba claiming damages against the defendant, who is the appellant on this appeal, for damages arising from a motor vehicle accident which occurred on 24 November 1997 in Toowoomba, between the plaintiff's vehicle and a vehicle driven by the defendant.
The plaintiff claimed that the damage to the plaintiff's vehicle amounted to $4057.52. The defendant had counter-claimed for the damages to the vehicle driven by the defendant, however the learned Magistrate dismissed that counter-claim.
The learned Magistrate heard evidence and documentary exhibits were tendered in the course of the hearing. The ground of appeal, if leave were granted, is that the Magistrate erred, both in law and fact, by misconstruing the evidence. Did, by holding that the respondent had travelled 90 metres for the relevant period immediately prior to the collision, whereas in fact he had travelled 115 metres. Furthermore, in her calculation of speed, the Magistrate erred by miscalculating the probable speed of the respondent. This miscalculation had a fundamental effect upon the determination of liability.
The learned Magistrate found that the collision occurred on Holberton Street around 90 metres north of the intersection of Bridge and Holberton Streets, that is around 90 metres, she accepted, from the stop line associated with the southern side of the line on the road on the southern side of the intersection associated with the intersection.
She noted in her reasons that the plaintiff was travelling north along Holberton Street and there was no contest about that. Although the driver of the plaintiff's vehicle said he was travelling at about 50 to 55 kilometres per hour, that was not accepted by the learned Magistrate.
However, the learned Magistrate generally accepted that the circumstances of the accident were that the vehicle driven by the plaintiff's servant or agent, was proceeding straight ahead and that a collision occurred with the vehicle, driven by the defendant, which had come from the right-hand side of the road in the direction in which the vehicle owned by the plaintiff, was driven by the plaintiff's servant or agent.
The plaintiff's servant or agent gave evidence that he thought the defendant would stop. The learned Magistrate also found it was not contested that the defendant did not stop.
Regarding the evidence given by the defendant, the learned Magistrate said that he had told her in evidence he stopped on the kerb, looked to the left and saw the lights were red at Holberton and Bridge Streets. The learned Magistrate stated the defendant had an absolute duty to give way to all traffic on the carriageway. The learned Magistrate noted the defendant's evidence was he proceeded at five kilometres, crawling, he did not stop at the centre line, he continued, he heard the screech of brakes and he travelled one more metre and the impact occurred. The learned Magistrate accepted, on the question of liability, that the defendant was crawling as he said, and that it took him approximately five seconds to reach the centre of the carriageway. She accepted that the lights to his left, controlling Bridge and Holberton Streets, but not controlling the defendant's driving behaviour, was red when he, the defendant, left the roadside footpath and drove on to the carriageway. She also accepted the plaintiff's servant or agent was more likely than not, travelling at a speed greater than 50 or 50 kilometres per hour. She accepted that, having accepted the defendant's evidence that the lights controlling the flow of traffic in Holberton Street turned green some time after the defendant left the footpath and drove on to the carriageway.
She accepted the defendant as a precise and truthful witness who made appropriate concessions. She therefore accepted what he had to say. Therefore, she found the plaintiff travelled well in excess of 90 metres, and she accepted it was 90 metres, as the defendant gave in evidence, from the point of impact to the line associated with Holberton and Bridge, in under five seconds.
However, she also found the defendant placed himself in a position on the carriageway, where he was travelling on the carriageway, in a way where he might provide an obstruction to oncoming traffic, and he clearly had a duty to regard that oncoming traffic in his driving manner.
She also found the plaintiff saw the defendant and that his duty was to slow down, and not to assume that the defendant would stop.
She found the defendant, coming across the road, clearly should have stopped or at least looked to his left at any time before he proceeded into the northerly lane. She found any prudent driver would expect traffic to be coming from his left, and in failing to do that the defendant was negligent.
However, she also found the plaintiff contributed to the collision by failing to slow when he saw the defendant's vehicle, instead, simply proceeding on the assumption the defendant would stop.
She also accepted the plaintiff's servant or agent was a truthful witness and did not exaggerate and made appropriate concessions. In the circumstances, in the learned Magistrate's view, the apportionment of liability between the parties, ought to have been 30 per cent against the plaintiff's servant or agent, and 70 per cent against the defendant. That was the apportionment then made by the learned Magistrate.
On the question of quantum, the learned Magistrate dealt with that issue, and after examining the claim made by the plaintiff, on the evidence, reduced the claim by a figure of approximately $700. After apportionment the result of the learned Magistrate's consideration of the quantum of damages was that the learned Magistrate gave judgment for the sum of $2341.27 on the claim, together with interest and costs.
The appellant, not only complains that the learned Magistrate erred with respect to the issue of liability, but also complains that, with respect to the quantum of the claim, he ought to be permitted to obtain documents for expert examination. The effect of doing so would be to demonstrate that the items claimed are not proper to be claimed, principally because he did not have the opportunity to examine the damage, and that the assessor for the insurance company did not see the damage and compare it to the repairer's quote, for which, of course, the appellant has been made ultimately responsible after the apportionment on liability.
The difficulty facing me with respect to the applications made by the appellant, with respect to orders regarding documents, is that what I am considering is the appellant's appeal which is subject to leave. That is section 45 subsection 2 provides that:
“With respect to an appeal where a party is dissatisfied with the judgment of order or order of the Magistrate's Court, where the amount is not more than $5000, an appeal shall lie by leave of a District Court or a Judge thereof, who shall not grant such leave to appeal unless the Court or Judge is satisfied that some important principle of law or justice is involved.”
I take the law to be that an important principle of justice requires that there be a question going beyond the consequence of the decision upon the immediate parties to the action or matter. See American Express International Inc v. Hewitt (1993) 2 Queensland Reports 352 which was apparently cited with approval in Doyle v. James, Court of Appeal Queensland, Davies JA, Ambrose J and White J, 13 September 1993, unreported.
Mr Bakker, who appears on behalf of the respondent today, has referred me to other authorities, namely, Walter Reid and Company Limited v. Murphy (1924) State Reports Queensland 1. Scagliotti v. Boyd (1962) Queensland Reports 481 and Johns v. Johns (1998) 1 Queensland Report 138.
He submits that the first mentioned decision involved an appeal from a decision from a Magistrate. The application for leave to appeal related to whether the Magistrate could, according to equity and good conscience, give a decision in relation to an industrial award. He submitted the matter clearly related to an important question of law, even though the appeal ultimately was unsuccessful.
He also referred with respect to the second mentioned decision to the decision of Stable J, at page 496.
“I discount the submission that an important question of law or justice would be involved if a District Court Judge was wrong in fact. It seems to me that mere error in the Court below is not of itself enough to bring about interference with the decision by the Supreme Court.
Thus I consider that mere error in the Court below is not enough to bring about the intervention of an Appellate Court in such a case as the present.”
Finally, with respect to the third mentioned decision, he referred to Williams J:
“This throws the onus on the would be appellant of showing that some important principle of law or justice is involved. It does not give the Judge an unfettered discretion to grant or refuse special leave in every case. The practice we have already laid down of not granting special leave to appeal, unless we are of the opinion that the case is one of gravity, or involving some important question of law or affecting property of considerable value, or unless it is the case which is otherwise of public importance or is of a very substantial character.”
The appellant has filed a number of affidavits upon which he relied, including the affidavits relating to the concerns he raised about the possible alteration of figures in the repair quote and invoice and the fact that these prices were not confirmed by the assessor by an examination of the damage.
He submitted there is the possibility that an unscrupulous repairer might increase the prices for parts and for labour, particularly when he might know the individual items will not be scrutinised by the loss assessor. That, he considers, is a serious matter and that in the circumstances of this matter, not only is he not liable for the damages, but if he were liable then he may be subject to a false claim.
I have considered all the material read by the appellant on the hearing of this matter, including the material in support of orders regarding the production of the exhibits tendered before the Magistrate, and that the plaintiff produce other documentation in its possession or power.
If I may return to the concern about liability, the appellant is concerned that when one looks at the facts that the learned Magistrate had before her, the conclusion she ought to have drawn was that the servant or agent of the plaintiff was travelling at an excessive speed and probably at 70 kilometres per hour in breach of the Traffic Regulations. He submitted that the consequence is that, notwithstanding, he may have been turning right across the road, because of that excessive speed he would not have any obligation to the servant or agent of the plaintiff, because it was the excessive speed that produced the consequences.
In my opinion, even if I were to accept that the learned Magistrate erred in that respect, that, in my view, is not an important principle of law or justice. However, considering the circumstances I do not accept that the learned Magistrate erred in that respect.
To reduce the matter to precise calculations of distances and speeds, in my view, may not give credit to the fact that an accident happens quickly, and that distances of some eight metres do not necessarily account for the views that the parties hold as to the responsibility for the collision.
Further, even if the servant or agent was travelling at 70 kilometres per hour, the fact remains that both drivers ought to have kept a proper lookout and that, with respect to the appellant, there was a duty upon him not to proceed into the path of the oncoming vehicle. He having left from private property and was crossing the road to turn right to travel apparently in the same direction as the plaintiff's vehicle.
The apportionment of 30/70 in the plaintiff's favour I do not consider was unreasonable on the facts before the learned Magistrate.
As to the question of quantum of damages, and that the amount claimed may have been inflated wrongly by those involved, there is absolutely no evidence, in my opinion, that could persuade anyone that in fact that occurred.
I observe that the learned Magistrate in fact did consider the items of the plaintiff's claim and reduced them by a figure of some $700. Discovery was available to the parties in the action and if one party considered they ought to have obtained other documents or better copies or the originals at any stage of the litigation, the rules of the Court provide for those steps to be taken.
It is unfortunate in our system that it may well be a party does not have the funds to be able to pursue those avenues. However, while that may have been the case with respect to the appellant, I do not consider that it is appropriate after the litigation to seek to obtain evidence which I have no satisfaction on the evidence before me will yield the result the appellant might hope the further inquiries might reveal.
There may be a broader issue involved for our community regarding the repair of motor vehicles. The appellant does identify the disadvantage that a person involved in a motor vehicle accident may find themselves in because of the prospect that one party will not be able to or will not for whatever other reason follow-up the damaged vehicle to ensure that what is later claimed to have been damaged was in fact damaged.
Further, it does take expense and the cooperation of other persons involved in the motor vehicle repairs industry to provide evidence that claims for the cost of individual items are beyond what is fair and reasonable.
Those are matters I consider need to be addressed by other persons and are not matters that I can address as a Judge. The learned Magistrate might have been able to make specific findings if the evidence had been adduced at the trial, that is evidence of the kind that the appellant is concerned about regarding the individual items.
I find myself in the position of having to accede to the submissions of the respondent because I believe they are correct that I ought not to grant leave for this appeal. I do so specifically because in my opinion, I am not satisfied there is some important principle of law or justice involved and I do that bearing in mind and considering the appellant's attempt to obtain documents to try and further the inquiry he would wish to make about the authenticity of the documents and the validity of the individual items within those documents.
In all the circumstances, I therefore refuse leave to appeal and I dismiss the application of the appellant filed on 13 April 1999 which I adjourned till today for further consideration. This then of course brings me unhappily to the question of costs. I say that because my assessment of the appellant is that he is acting reasonably within his own views of his circumstances and notwithstanding, I consider them to be wrong in point of law. It must follow though, notwithstanding that observation that the appellant be ordered to pay the respondent's costs of the appeal. I order that the appellant pay the respondent's costs of the appeal. I make no order with respect to the costs of the appellant's application filed 13 April 1999.
Mr Bakker, I assume you had no submissions to make on that application?
MR BAKKER: No, Your Honour.
HIS HONOUR: Yes, thank you. Is there anything further that you think I ought to address or-----
MR BAKKER: I don't think so.
HIS HONOUR: -----you wish to raise? Yes, Mr Webber, is there anything further that you wish to address me on?
MR WEBBER: None also.