Robyn Mary Mitchell v Graeme Sherwin Taylor Sca [1992] ACTSC 69; (1992) 108 FLR 265 (28 July 1992)

SUPREME COURT OF THE ACT

ROBYN MARY MITCHELL v. GRAEME SHERWIN TAYLOR
S.C.A. No. 76 of 1992
Negligence
[1992] ACTSC 69; (1992) 108 FLR 265

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Negligence - Appeal from Magistrate.

Negligence - Duty of care - Whether driver acted unreasonably - Causation - Foreseeability

Magistrates Court (Civil Jurisdiction) Act 1982, s.282G

The Federal Capital Press of Australia Pty Ltd v Edwards (ACTSC; Gallop J.; 8/7/92; unreported)

O'Connell v Adams (1973) Crim LR 113;

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1

Paric v John Holland Constructions (1984) 2 NSWLR 505

Myers v Claudianos (1990) 95 ACTR1

Miletic v Capital Territory Health Commission (ACTSC; Higgins J.; 12/6/92; unreported)

HEARING

CANBERRA
28:7:1992

Counsel for the Appellant: Mr G Stretton

Instructing solicitors: Messrs Sneddon Hall and Gallop

Counsel for the Respondent: Mr G Parker

Instructing solicitors: Messrs Abbott Tout Russell

Kennedy

ORDER

The appeal be dismissed.

DECISION

HIGGINS J. On 10 March 1992, Magistrate Burns rejected a claim by the appellant for damages for personal injury. She alleged that such injury had been caused by the negligence of the respondent.

2. The facts are referred to in some detail by the learned Magistrate in the course of his written reasons for decision. Some factual matters were in dispute.

3. I note that the appeal to this Court is brought pursuant to s.282G of the Magistrates Court (Civil Jurisdiction) Act 1982. There have been many decisions defining the nature of such an appeal. The most recent is The Federal Capital Press of Australia Pty Ltd v Edwards (ACTSC; Gallop J.; 8/7/92; unreported).

4. The effect of those decisions is that I have the task of reviewing the evidence before the learned Magistrate (and any additional evidence tendered by leave to this Court). I would then give effect to such findings as I might consider proper on that material. In so doing, I will give due consideration to the Magistrate's findings but I am not bound by them. However, it would normally be incumbent upon me to defer to any findings made by the learned Magistrate based on his assessment of the credibility of witnesses.

5. It was not disputed that, shortly after midnight on 8 September 1990, a taxi was summoned to convey the appellant and her husband from a party at Florey to their home. The respondent was the driver of the taxi which attended.

6. The appellant attempted to get into the back of the taxi. As she opened the door, the interior light activated. At that stage the respondent noticed that the appellant was holding a half-full stubbie of beer in her left hand. She was then wearing a loose-fitting cardigan over her other clothing.

7. The respondent told the appellant that beer was not allowed in the cab. The appellant's husband, apparently observing that the respondent was firm in his instruction to the respondent, advised her that they would get another cab. There was some dispute about the terms of that conversation. The Magistrate preferred the respondent's version. He saw the witnesses. I defer to his conclusion although the terms of the conversation have no real bearing on what next transpired.

8. As the appellant left the taxi she closed the door after her. She agreed she had slammed it. The Magistrate concluded she was angry with the respondent at that time. The respondent testified, and the Magistrate accepted, that he turned his head to the left to observe the appellant as she left the taxi. He observed that she had, apparently, moved away from the side of the taxi. He then signalled and moved away.

9. Unbeknown to the respondent, it seems that the appellant had slammed the taxi's rear passenger door over the bottom corner of her loose-fitting cardigan. As the taxi moved away, the appellant was pulled off her feet. The cardigan came away from her after she fell. The appellant's husband claimed that the appellant was dragged along by the taxi for 15 metres. The Magistrate did not accept that evidence. He was of the opinion that the allegation was not consistent with the medical evidence.

10. Mr Stretton, for the appellant, rested his case on the proposition that, in failing to check his rear-view passenger side external mirror, the respondent was negligent. It was contended that, had the respondent looked in that mirror, he would or should have seen that the appellant's cardigan was trapped in the rear door. Had he observed that, he would, of course, have delayed his departure until the cardigan was freed.

11. Even though the Magistrate rejected the appellant's husband's account of her fall, there was no doubt she was pulled over by reason of the pull on her cardigan and that she suffered injury as a result of that fall. She suffered a sore right loin and swelling and deformity of the right little finger.

12. The question for me is whether the admitted failure to look at the rear-view mirror was negligent and, if so, the effective cause of the appellant's injuries.

13. In considering that question, I defer to his Worship's finding that the respondent's account of the manner of his departure was to be preferred to that given by the husband. It was not contended that I should not. It follows that, in all other respects, the respondent's departure was at a pace and in a manner consistent with that of a reasonable and prudent driver.

14. The Magistrate was not persuaded that the respondent had breached his undoubted duty of care by failing to use his rear-view mirror. He did turn his head and did observe the appellant step away from the vehicle.

15. It was suggested that his Worship was in error in concluding that the appellant was not dragged along for a distance of 15 metres. It is said that this was so because the appellant and her husband had asserted that she had abrasions and bruising whereas Dr Meiklejohn did not refer to noticing any abrasions. The appellant had not been cross-examined to suggest that she had suffered no abrasions or at least no significant abrasions such as would have been caused had she been dragged along for the distance suggested.

16. His Worship's apparent purpose in alluding to abrasions was to add weight to his conclusion that the appellant had not been dragged along for the extended distance her husband had referred to. It may well be that, even if she was pulled over to fall heavily, as undoubtedly she did, she would have some abrasions. However, had she been dragged along the roadway and kerb area for 15 metres, her abrasions would have been quite serious. In that sense, therefore, the absence of noteworthy abrasions may be seen as inconsistent with that account of the appellant's fall.

17. I would, therefore, agree with his Worship's conclusion that the appellant's husband's account of the way the taxi drove off should have been rejected. The absence of cross-examination as to abrasions, given the lack of detail in the appellant's account of them, does not seem to me to be significant. It did not require acceptance of the account given by the appellant's husband of the manner in which she fell. That conclusion is reinforced by the consideration that this was a summary hearing. The respondent had no direct knowledge as to how the appellant fell. Nor did the appellant give any direct evidence thereof. There is no rule of law or practice requiring a different conclusion than that to which the learned Magistrate came (see O'Connell v Adams (1973) Crim LR 113; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, 18 per Hunt J.; Paric v John Holland Constructions (1984) 2 NSWLR 505, 507 per Samuels J.A.; Myers v Claudianos (1990) 95 ACTR1, 11 per Miles C.J.). I have considered the relevant evidence including medical evidence. I find his Worship's reasoning both logical and compelling. I agree with his conclusion that there was nothing unreasonable in the manner in which the respondent drove away.

18. The appellant contends, however, that had the respondent looked into his near-side rear-view mirror before departing, he would (or should) have seen that the appellant's cardigan was caught in the door.

19. The only evidence concerning that matter came from the respondent. He said,

"... on turning into Southern Cross Drive I happened to look in
my left-hand side mirror and I happened to notice something that
didn't quite appear to be right. There was something just a
little bit out of place. I stopped the car and I found a cream
cardigan jammed in the bottom part of the door ... I think it
might have been the lower part of the cardigan."

20. During cross-examination the respondent gave the following evidence:-

"Where was it that you said you were when you looked in your
rear-view mirror and saw the cardigan? - - - Just - well, I
didn't know it was a cardigan at that stage. I was just turning
into Southern Cross Drive from Radcliffe Crescent.
Well, you didn't know it was a cardigan but you knew there was
something at the back there? - - - Well, there was something that
sort of just appeared to be there and out of place.
Yes. And that was clearly, was visible from your rear-view
mirror obviously or you wouldn't have known something was out of
place? - - - Yes, sure."

21. The respondent agreed he had not looked into the near-side rear-view mirror but did not express any view as to whether he would have seen the cardigan caught in the door had he used it.

22. There was, additionally, no evidence as to the state of the lighting in the area where the appellant stepped away from the respondent's taxi. It does appear that street lighting had some relevance in enabling the respondent to notice the cardigan.

23. That emerges from the following evidence he gave,

"When you first saw it, that is you noticed something which
seemed out of place? - - - Well, it was - I mean it was, you
know, after midnight and it was fairly dark. I mean, I just
happened to sort of catch a - just catch a glimpse and whether it
was a, you know, a bit of illumination or a street light or
something like that, I'm just not sure. But it was just
something very strange, you know, didn't appear to be right."

24. Clearly, the respondent had a duty not to move off until the appellant was clear of his taxi. The risk he could have foreseen would have been that the appellant might be still in or holding onto the body of the taxi. It would not have been foreseeable that the appellant would have caught her garments in the door without noticing that herself. If she had noticed it she would have re-opened the door so as to release such clothing before stepping away from the taxi.

25. In any event, the respondent had to make sure the appellant was clear of his taxi before he moved off. He could have done this either by watching the appellant clear the taxi by means of turning to observe her do so, or by looking at her by means of the near-side mirror. It would, of course, have been possible to do both.

26. However, I find myself, at this point, in agreement with his Worship. I can think of no reason other than hindsight for concluding that turning around to observe the appellant would not be sufficient to avoid the perceived risk. Even if she had moved to re-open the door she would be more readily observed than if viewed only in the mirror. In fact, to turn as the respondent did would have given him a better view of the appellant than would be seen in the narrow confines of the mirror.

27. It is, of course, possible that a prudent driver might do both things. That is, use the mirror as well as turning around. However, the test is whether a driver would be acting unreasonably in failing to do both. I am not persuaded that it was unreasonable for a driver not to use both methods of observation before moving off. I am satisfied that having seen the appellant step away from the taxi, the respondent was not acting unreasonably in then moving off. The learned Magistrate so concluded and I agree with him.

28. Mr Parker, for the respondent, raised a further point. He submitted that there was no evidence that to have used the near-side mirror would have revealed the presence of the cardigan in the door and thus avoided the injury to the appellant.

29. I have to agree with that. It is an issue upon which, as I pointed out in Miletic v Capital Territory Health Commission (ACTSC; 12/6/92; unreported), the onus lies on the appellant to satisfy the court that the alleged breach of duty caused the injury. That is, that if the respondent had done that which he failed to do, the injury probably would not have occurred. In this case, the capacity of the mirror to show the relevant area of the back door was not in evidence. It was presumably a standard mirror for the vehicle in question. The degree of lighting external to the taxi was not addressed. I cannot conclude that the cardigan could have been seen in the mirror. Further, even if the cardigan could have been observed within the area of view afforded by the mirror, I cannot conclude that the light was sufficient for it to have been seen clearly enough to observe that it was caught in the door.

30. It follows that, even if I disagreed with the learned Magistrate's conclusion that there was, in the circumstances, no need for the respondent to look in the near-side rear-view mirror before moving off, I am of the opinion that the evidence fails to demonstrate that such a precaution would, on the balance of probabilities, have avoided or lessened the risk of the accident occurring.

31. It follows that I dismiss the appeal.

32. I will hear the parties as to costs.