White v Anderson[2006] QDC 195

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application in the first instance for leave to appeal and if granted to appeal the decision of the learned Magistrate at Beenleigh on 5/6 August 2004 (“the decision”) whereby her Honour awarded judgment in favour of the plaintiffs (“the appellants”) against the defendant (“the respondent”) in the amount of $1,416.80 damages plus interest and costs.

2. [2]
   At the hearing there was no appearance of the respondent despite her receiving notice of the appeal hearing and upon enquiries being made the respondent acknowledged that she was aware of the hearing date and had no objection to the matter proceeding in her absence. She had previously filed a written outline of her submissions which was on the court file.

3. [3]
   The nature of the original claim before the learned Magistrate was the appellants suing the respondent for the sum of $3,927.55 for property damage to the appellants’ motor vehicle arising out of a collision between the appellants’ motor vehicle and the respondent’s motor vehicle at a suburban intersection on 11 November 2003.

4. [4]
   Ultimately the learned Magistrate’s findings were that her Honour was “…not satisfied that the total amount of $3,927.55 has been proved to the required standard in this case” and gave judgment to the appellants against the respondent “…for $1,310^[1] which is one-third of the amount claimed” together with interest and costs^[2].

5. [5]
   The appellants’ grounds of appeal are as follows:

“ (1)The decision was against the weight of the evidence and unsupportable on the evidence;

(2)The magistrate has unreasonably substituted her own opinion for that of the expert witness called by the plaintiffs without grounds to do so;

(3)The Magistrate has unreasonably rejected evidence which was uncontested.

(4)The Magistrate has allowed incorrect and extraneous considerations to affect the decision;

…

(5)The Magistrate has erred in law in failing to enter judgment for the plaintiffs in the amount of $3,927.55 and in finding that the plaintiffs were not entitled to have all damage caused by the accident repaired.”^[3]

The Law

6. [6]
   An appeal to this court from a judgment or order of a Magistrate’s Court in these circumstances is governed by s 45 of the Magistrates Court Act 1921 which relevantly provides:

“ 45  Appeal

3. (1)
   Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—

1. (a)
    in an action in which the amount involved is more than $5000; or

…may appeal to the District Court as prescribed by

the rules.

3. (2)
   Provided that—

1. (a)
    where in any of the cases above referred to in subsection (1) the amount is not more than $5000, an appeal shall lie by leave of the District Court or a District Court judge, 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;…”

Leave to Appeal

7. [7]
   As set out above the appellants need leave to appeal the Magistrate’s decision in view of the amount claimed in the original action which shall not be granted “unless the court or judge is satisfied some important principle of law or justice is involved”.

8. [8]
   The appellant’s submissions on this threshold point are summarised as follows:

1. (a)
   The Magistrate erred in reaching her decision by being influenced by “radio and television commercials” (of insurers) rather than accepting the sworn evidence of the loss assessor expert witness (“Webb”) as to the extent to which the appellant’s vehicle was damaged in the collision and needed to be repaired;

2. (b)
   Her Honour’s failure to accept the expert’s evidence as to the extent of the repairs which needed to be effected to the appellant’s vehicle as a result of the collision when the expert’s evidence was uncontradicted by any other evidence;

3. (c)
   Despite accepting the appellant, Comet Robert White (“White”), as an “honest” witness in respect of his assessment of the damage sustained to his motor vehicle in the collision while at the same time also accepting the respondent as a credible witness, erred in law by not considering all of the evidence called by the appellants on point which, if her Honour had done so, could not have failed to be satisfied on the balance of probabilities that the damage claimed arose out of the collision; and

4. (d)
   In the light of the many proceedings which come before Magistrates Courts involving property damage to motor vehicles arising out of collisions, and despite the fact that the decision is not biding on any other Magistrate, it is an important principle of justice to uphold that where there is accepted evidence given of damage having been sustained in a motor vehicle collision and further uncontradicted expert evidence of the costs of repair thereof, a decision should be made as a matter of law on the evidence before the court only, rather than a decision being made in an arbitrary manner based upon extraneous and irrelevant material which is not part of the evidence in the proceeding.

9. [9]
   At the hearing of this appeal it was submitted by the appellants that the test this court should apply in determining the question of whether or not to grant them leave to appeal is that of a “three-tier approach”^[4] as espoused in the matter of Lachlan v Hartley (1978) Qd R 1 at page 5, namely:

• did the making of the order (by the Magistrate) involve a question of law or justice;
• if it did, was it an important question; and
• was the question wrongly decided?

10. [10]
    The fact that the legislature has seen fit to require an appellant to seek leave in circumstances such as presently apply indicates the legislature’s concern to reduce appeals of this nature and as was stated by Carter J in Glenwood Properties Pty Ltd v Delmoss Pty Ltd & Anor (1986) 2 Qd R 388:

“…an applicant for leave (to appeal) must show more than that he has an arguable case…it seems to me that at least the applicant must be able to demonstrate prima facie error in the judgment of the judge in chambers and that the question in issue be one of general importance and accordingly one which the public interest requires should be the subject of further argument and decision in the Full Court.”^[5]

11. [11]
    While the appellant’s submissions on this argument, in this matter in particular, are “borderline” at best, I am prepared to accept on balance there is a sufficient basis in the light of the Magistrate’s decision on the totality of the evidence before her, to grant the appellants leave to appeal, essentially on the basis of the submissions made that the learned Magistrate failed to a significant degree to apply proper legal principles and prima facie erred in her judgment which denied the appellants the opportunity to receive a fair consideration of the issues involved.

General Principles to be applied by an Appellate Court

12. [12]
    The general principles upon which an appellate court must operate are well established:

“An appellate court will not readily overturn a trial judge’s primary findings of fact where those findings are based on his or her assessment of the credibility of witnesses. As Kirby J said recently in Whisprun Pty Limited v Dixon [2003] HCA 48 –

“67. However, normally, to secure reversal of a primary judge’s credibility-based conclusions, it is necessary for the challenger to demonstrate that such conclusions are flawed by reference to incontrovertible facts or uncontested testimony: showing that the primary judge’s decision was erroneous, notwithstanding that it appears to be (or is stated to be) based on credibility findings. Such was the case in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (‘SRA’). There a witness, disbelieved by the primary judge, was supported by contemporaneous documentary evidence and unchallenged testimony of other witnesses that had not been considered and that evidence combined to demonstrate the fragility of the judge’s conclusion. Such was also the case in Fox v Percy where the decision of the primary judge, although based on a credibility assessment, could not be reconciled with other testimony that the primary judge accepted. In particular, it did not accord with a contemporary record that contradicted the judge’s conclusion.”

In Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court said of an appellate court’s role in drawing of inferences from proved or uncontested facts –

“‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’”

The High Court has recently reviewed “the dichotomy between the foregoing appellate obligations and appellate restraint”: Fox v Percy [2003] HCA 22 at [28]; Whisprun Pty Ltd v Dixon; Suvaal v Cessnock City Council [2003] HCA 41. In Fox v Percy Gleeson CJ, Gummow and Kirby JJ said –

“[28] … From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.”^[6]

13. [13]
    This appeal relates only to the quantum of damages awarded by the learned Magistrate who found the respondent “…totally responsible for the collision and … totally liable for Mr White’s (the appellant) damages”^[7].

14. [14]
    The appellants called two witnesses relating to the quantum of damages namely the appellant, White, and the insurance assessor, Webb.

15. [15]
    In her reasons the learned Magistrate accepted that “…there wasn’t anything that Mr White did that made me doubt for one moment that he wasn’t telling me the absolute honest truth as he knew it…” and in respect of the respondent the learned magistrate said further “…and likewise with Mrs Anderson and although counsel put several things to her about why she should not be believed but from her demeanour and how she presented in the court and how she gave her evidence I was quite certain that she was not telling lies as well”^[8].

16. [16]
    The appellant White’s evidence as to the damage to his motor vehicle in the collision was:

1. (a)
   “The (Rear) bumper bar bent right in …and…protruded…on the passenger side out from the mudguard…”^[9];

2. (b)
   “The bumper bar was pushed up on to the boot”^[10];

3. (c)
   “left hand…break light-tail light was broke (sic)”^[11];

4. (d)
   “I couldn’t open my boot…I forced it open”^[12] and

5. (e)
   Damage to the boot floor revealed when he got home and inspected underneath the carpet in the boot.^[13]

17. [17]
    The appellant White’s evidence was that shortly after he returned home after the collision he contacted his insurer who instructed him to obtain a quotation for repairs which he did “probably within the hour”^[14] and the quotation received became Exhibit 3 in the proceedings.

18. [18]
    The vehicle was inspected and assessed by Webb, a qualified panel beater for a period of approximately 11 years prior to the collision, who had extensive experience in quoting on vehicle repairs and panel beating and at the relevant time carried out “about 400” assessments per month for the appellant’s insurer^[15].  Webb was called in the capacity of an expert on motor vehicle repairs.  He described the damage he assessed and stated that the adjustment he made to the original quotation made the repairs to be carried out to the vehicle “fair and reasonable”^[16].

19. [19]
    Webb’s evidence was not shaken under cross-examination and the respondent called no independent or expert evidence in reply in respect of the damage to the appellant’s vehicle.

20. [20]
    In her reasons for judgment the learned Magistrate appears to have rejected the evidence of Webb on the basis that:

“…He is not independent from the insurance company.  He’s employed by the insurance company.  They’ve given him national benchmarks to comply with.  And in this case he didn’t even recall Mr White’s vehicle.  That’s the major problem or the major hurdle for me.”^[17] 

21. [21]
    Her Honour also commented:

“…that this case highlights the difficulty that arises when insurance companies are doing their best for their customers and clients and try to streamline the whole process of repairing vehicles.  It is a common practice to see advertisements on the television and to hear them on the radio about how if you’re involved in a car collision you just drive your car down to the assessment centre, you can leave it there and never see it again, never be concerned at all about what happens.  It get (sic) repaired.  You get it back.”^[18]

22. [22]
    Her Honour also questioned the credentials of the witness Webb on the basis that:

“…he’s a panel beater with a lengthy experience as a panel beater but he’s only been an assessor for two years.  He said that what he did when he went through the quote was just compared the quote with the damage that he saw in front if him on the car and he compared it and adjusted it according to benchmarks or guidelines that his insurance company has for variance (sic) typical repairs.”^[19]

23. [23]
    Her Honour also found that she was “…not satisfied that it was appropriate…” to carry out certain repairs and painting which Webb had stated in his evidence were “…fair and reasonable given the repairs that needed to be done to the vehicle…”^[20] despite the absence of any evidence to the contrary.

24. [24]
    Finally her Honour awarded the appellants judgment against the respondent “…for $1,310 which is one-third of the amount claimed”^[21] with no explanation as to how this figure was calculated by reference to the quotation for repairs.

25. [25]
    The respondent’s written submissions essentially argue that the Magistrate’s findings were open to her on the evidence and that the appellants’ vehicle must have sustained damage before the collision with the respondent’s vehicle although the respondent failed to address the issue that there had been evidence given by the appellant White and Webb respectively that the vehicle was undamaged prior to it being involved in the collision with the respondent and the damage assessed and adjusted a short time later was fair and reasonable.

26. [26]
    With due respect to her Honour there would appear to be no basis for her on the evidence presented to her to find that the appellants were entitled to judgment for only “one-third” of the damages claimed or any discounted assessment of the quotation for repairs when she found that the appellant White was honest and truthful in respect of his account of the damage his vehicle had sustained in the collision and Webb who inspected the vehicle within a short time of the collision had confirmed that the quotation for repairs he had adjusted was “fair and reasonable” for the damage sustained, as this evidence was uncontradicted.

27. [27]
    In all the circumstances, I am satisfied that the learned Magistrate erred in the findings her Honour made in that after accepting that both the appellant White and the respondent were “honest” witnesses and therefore being unable to prefer the evidence of one over the other, failed to accept the uncontradicted evidence of Webb in respect of the damage he inspected and the cost of repair thereof. It would appear that her Honour substituted her own opinion evidence for that of Webb and by so doing made findings and reached an arbitrary conclusion, contrary to the evidence before her and for which there was no basis if proper legal principles were applied in the consideration of that evidence.

Orders

28. [28]
    It follows therefore that the appeal should be allowed and my orders are as follows:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The judgment of the learned Magistrate of 5/6 August 2004 is set aside.

4. Judgment for the appellants against the respondent in the sum of $8,235.40 inclusive of damages interest and costs of the proceeding calculated as follows:

5. The respondent pay the appellants costs of and incidental to the appeal to be agreed or assessed on the standard basis under the applicable District Court scale.