Crosthwaite v Dewit [2017] QCATA 91

CITATION: Crosthwaite v Dewit [2017] QCATA 91 PARTIES: Darren Crosthwaite (Applicant) V Andrew Dewit (Respondent) APPLICATION NUMBER: APL384-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 9 August 2017 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The tribunal’s decision is set aside and an order that the respondent pay the applicant $2,214.93 and $315.70 filing costs is substituted. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – WHERE FACTS IN DISPUTE – where the applicant sought leave to appeal against a tribunal decision dismissing the claim of $4,429.86 for repair costs – where the applicant and respondent versions of events irreconcilably conflicts – where the grounds of appeal relate to findings or inferences of fact – where the appellate powers can be exercised to disturb an error of fact if findings or inferences are inconsistent with compelling contrary facts or inferences – where even on his own case the respondent should contribute 50 per cent per -- 1 of 12 -- 2 cent of the liability for the cost of repairing the damage to the applicant’s vehicle. Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 13, 32, 146, 147 Abalos v Australian Postal Commission (1990) 171 CLR 167 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Warren v Coombes (1979) 142 CLR 531 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). REASONS FOR DECISION [1] In hot dry conditions on 17 March 2016 cars driven by the parties collided with each other as they were both travelling north east direction towards a traffic light controlled intersection but intending to turn left into View Street off Cairns Western Arterial Road in Brinsmead. The front left hand side and bull bar of the applicant’s SVU was damaged by the impact as was the rear to middle right hand side of the respondent’s ute.1 There were no eye witnesses or police in attendance at the scene. [2] The applicant’s claim of $4,429.86 for repair costs was dismissed by the tribunal. He now wants that decision reversed to avoid what he calls the financial injustice of having to foot the repair bill personally. Despite the statement to the contrary in Part E of the Form 39 leave to appeal is needed. The accident site [3] Western Arterial Road has two through lanes in either direction with both right and left turning lanes. A bike lane separates the left-hand side through lane from the left only turning lane. The traffic lights to the entry to the turning lane on the left hand side is 105 metres. The respondent’s vehicle 1 Transcript at 1-19: 20. -- 2 of 12 -- 3 came to a stop 25-30 metres along the left turning lane and with a flat right tyre. [4] A sketch plan of the scene by the respondent Annexure B or Exhibit 2 depicts the relative positions of the vehicles at point of impact with the applicant’s 4WD marked straddled at angle across the bike riding lane at the mouth of the left lane. [5] The drawing also shows the damage to the front left of the 4WD and right rear to the ute’s wheel back passenger side wheel. The parties’ rival versions [6] The respondent says that as he prepared to take the turning lane he activated his indicator. The vehicles ahead of him were stationary. None of them was indicating an intention to change lanes. He proceeded to veer left into the turning lane, crossing over the bicycle lane as he did so. He remained within the roadway at all times as he merged into the turning lane. At no point did he move his vehicle onto or across the shoulder of the road. The applicant’s vehicle was the last vehicle of “approximately three or four stationary vehicles” the respondent could see waiting in the left through lane at the red traffic lights. [7] The respondent said that he merged at 20 kilometres per hour and it was not until after his vehicle was fully established in the left-hand turning lane that he heard a noise like a bang and felt a jolt backwards and the front passenger side of the applicant’s vehicle had collided with the middle and rear driver’s side of my vehicle. [8] On the respondent’s case the applicant’s vehicle was either just moving or stationary at the entry to the turning lane on the left hand side and was in front of the respondent’s vehicle. [9] The applicant, by contrast, claimed the respondent was travelling at an excessive speed when he attempted to enter the left-hand lane the turn left lane from the shoulder of the road, he anticipated the left-hand turning lane and was on the shoulder and it was when he was coming in from the shoulder into the left-hand turn lane that the collision occurred. Three or four vehicles queued at a red traffic light do not occupy anything like 105 metres of a lane. There were more vehicles in the left through lane than the three or four the respondent reportedly saw. The record of proceedings [10] 1-5:35-43 – the applicant did not see the utility at any time before impact but could not “conscientiously remember” indicating before moving into the left turn lane. [11] 15:45-1-6:20 – the applicant did not check his rear view mirror when at the point where the left turning lane started because he was just not expecting -- 3 of 12 -- 4 a car from behind to go around him and enter the lane ahead of him from the verge. [12] 1-9:5 – the applicant did not look into the left lane before proceeding because the lane was just forming and he was at the head of the queue. [13] 1-9:15 – the tribunal struggled to understand why the applicant did not see the utility before the point of impact since his 4WD essentially collided with the rear of the ute. [14] 1-9:34 – according to the applicant Annexure B to the respondent’s affidavit is not to scale and gives the false impression that the ute could pass the 4WD on the inside without crossing the painted boundary line between the shoulder and road surface. [15] 1-10:15-30 – the applicant refuses to accept that at impact the ute was wholly within the left hand turning lane at the time of the collision but insisted it was outside the painted road and not wholly within the left hand turning lane as depicted in Annexure B because the damaged part of the body of each car abutted not overlapped the other by 20 per cent. This means that both passengers side wheels physically (of the respondent’s ute were if not representationally) outside the painted boundary line. [16] 1-12:25-45 – the applicant admits he did not see the ute before or at the point of impact because it wasn’t in front of him but came in from the far left side. There was a bang and the ute ended up 30 metres down the road inside the line markings of the turning lane. [17] 1-13 – what the respondent did wrong was approach the turning lane on the inside before it had formed presuming that no one was going into the lane from the right lane. His passenger side wheels were partly on the shoulder outside the left lane. [18] 1-15:25 - 1-19:5 – in his affidavit the respondent approached the turning lane, activated the left hand indicator and moved into the turning lane when judged safe to do so. [19] 1-15:30 - 35 – it’s impossible to drive on the shoulder of the Western Arterial towards the traffic lights at the T junction with View Street because at the start of the dotted line of the bike lane shared with the left turning lane into View Street there is a concrete gutter, grass verge and a footpath. [20] 1-16:25 – the full length of the ute was positioned wholly within the left hand turning lane and no part of it was on the shoulder at impact. [21] 1-16:45 – as the respondent was approaching the left-hand lane he passed the 4WD on his right and when “basically half-way past he heard a bang and a backwards jolt”. [22] 1-17:5 – the point of impact was at the middle section of the ute just behind the front seats where the steel tray joins the cabin. -- 4 of 12 -- 5 [23] 1-17:15-20 – the respondent does not recall (or deny) that he was behind the applicant at the service station 200 metres from the intersection. [24] 1-17:30 – the respondent was driving 20 kilometres per hour and was stationary two to three car lengths from the traffic lights when the applicant slammed into him. [25] 1-17:40 – the applicant believes that the ute was speeding in a hurry to get to a late afternoon job. He says the nature and extent of the damage to the applicants 4WD (a 20 centimetres long rip to the bull bar which was almost ‘torn in two’ and a dent a metre long along the mudguard to the fender) contradicts the respondent’s suggested 20 kilometres per hour speed. [26] 1-18:5 – the left turning lane starts about 105 metres before the traffic lights but on the basis of his assertion that the applicant’s 4WD was two to three car lengths from the traffic lights or 16-18 metres back there is a discrepancy of 80 metres from the 105 metres between the intersection and where the left turn lane begins. [27] 1:19:5 – the back of the steel tray has hooked onto the front of the 4WD bull bar. The tribunal findings [28] At Transcript 1-19:15 –1-20:1-45 the tribunal found:  On 17 February 2016 both were travelling along the Cairns Western Arterial Road in Brinsmead to make a left-hand turn prior to a set of traffic lights or at the intersection into View Street.  In the course of each of the vehicles preparing to make a left-hand view into View Street, the front left-hand side of the applicant’s vehicle came into contact with the rear to middle right-hand side vehicle.  The applicant did not see the respondent’s vehicle at any time prior to impact. He can’t remember whether he indicated before proceeding into the left-hand turn lane. After impact the respondent’s car was 30 metres down the road, wholly within the left-hand lane.  The damage to the vehicles was not inconsistent with the speed at which the respondent says he was driving.  The applicant’s account of how the accident occurred does not sound particularly credible.  The respondent’s version of events, that he was travelling in the left-hand lane and was in the process of passing Mr Dewit’s vehicle -- 5 of 12 -- 6 in the adjacent lane when Mr Crosthwaite’s vehicle moved across, causing the two vehicles to collide makes more sense.  The accident simply could not have occurred in the place where it did based on the applicant’s suppositions and hypotheses having regard to the position of the vehicles at and after the point of impact.  I find that the respondent’s vehicle had entered into the turn left lane and was within that turn left lane when the applicant’s vehicle turned into the far left lane and collided with the respondent’s vehicle. I am not satisfied that the accident occurred as a result of any fault on the part of the respondent.  It is difficult to escape the conclusion that (the applicant) was not keeping a – a proper look out. The front left of his vehicle collided with the right rear of Mr Dewit’s vehicle. It is difficult to conceive how that could have occurred if (he) was keeping a proper look out. The grounds of appeal [29] The two proposed grounds of appeal stated in Attachment A to the Form 39 relate to findings or inferences of fact. [30] The first ground challenges the tribunal’s finding that the appellant “hypothesized that [the respondent] attempted to enter the left hand lane from the shoulder of the road” as being contrary to the only conclusion the overwhelming weight of the relevant evidence permitted; that is, the respondent had been following behind him, presumably saw a line of stationary traffic ahead and tried to go around it by moving onto the left hand side shoulder and attempting to re-join the road as the turn left only lane started at the exact time the applicant was doing the same from his right. [31] The tribunal’s alleged mistake is wrongly accepting that the respondent was already “firmly established” wholly within the left turning lane when the applicant moved across from the right without indicating or looking. [32] The applicant’s second ground disputes the tribunal’s finding that the collision could have been avoided if he was keeping a proper lookout as he was changing lanes. He denies any duty of care because the respondent was not where he should have reasonably expected to be by even the most attentive driver. [33] A grant of leave is discretionary. [34] The leave requirement is a mechanism for ensuing that the appeal tribunal’s finite appeal resources are dedicated to cases where a full hearing is justified by the reasonable prospect of a different outcome. In the court system this usually means that for small money claim (in this case $4,429.86) the applicant has to identify some legal or factual error that if not corrected on appeal will cause substantial injustice or unreasonable result. -- 6 of 12 -- 7 [35] The appellate powers can be exercised only if it is satisfied that there is an error in need of correction.2 [36] The tests generally applied in deciding such applications require something more than a merely arguable case of error to be demonstrated such as a question of principle or public importance is involved or the interests of justice demand it or where the correctness of the orders in issue is sufficiently doubtful to justify the commitment of resources to reconsider it there is an unacceptable risk of substantial injustice if they stand. [37] In this jurisdiction, however, I think an equally valid and appropriate test for appellate intervention is whether granting leave to appeal is necessary or desirable for meeting the tribunal’s goal of resolving minor civil disputes as early and economically as is consistent with achieving justice by making fair and equitable final orders including, when appropriate, dismissing a claim.3 Granting leave to appeal on questions of fact. [38] An appeal on questions of law may be made except in minor civil dispute cases where leave is always needed to appeal on both law and facts. [39] A question of fact involves an inquiry into whether something happened in the past or not. It is an error of law to make a finding of fact based on no evidence. [40] Drawing a wrong or impermissible inference from found facts is also a mistake of law. Whether there is any evidence capable of supporting disputed findings or inferences is a question of law. [41] As there is no expert, or other, evidence capable of rationally supporting it, it was an error of law for the tribunal to conclude that the damage is not inconsistent with the 20 kilometres per hour the respondent said he was doing. A mistake in the comprehension, recollection or evaluation of evidence is an error of fact. [42] There is no appellable error if there is more than one possible conclusion supportable by the same body of evidence and inference or conclusion is within the permissible range of alternatives. [43] Appeals on questions of law are decided under s 146 QCAT Act. Facts appeals, by contrast, are decided by way of rehearing on the original material (unless additional evidence is allowed) on the basis of the current state of the law. Any substantial fact finding errors identified in the course of examining the record must be corrected and the decision given that should have been reached in the first place. To allow this to be done the 2 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203. 3 QCAT Act ss 3(b), 13(1). -- 7 of 12 -- 8 appeal tribunal can set aside the decision appealed from and substitute its own.4 [44] On rehearing, the evidence is reconsidered as if for the first time. A rehearing is not conducted according to law unless the appeal body fully reviews the trial evidence and redrawing inferences and reaching conclusions. It is also unjust to the applicant and denial of the appeal process to overlook or ignore and thus perpetuate rather than cure an error. [45] While due respect and weight must be given to the first instance conclusion the appeal tribunal must conduct a genuine review of the evidence make up its own mind and do what should have been done in the first place “weighing conflicting evidence and drawing … inferences and conclusions”.5 [46] An appellate body is reticent to reverse a credibility based finding of fact especially where demeanour was significant.6 [47] The reasons and limitations on appellate intervention in this context are explained by the High Court in Fox v Percy.7 In short, credibility findings of fact are upset only where the trial judge erred in principle or the logical consistency of the evidence compels a different finding8 not merely because the appeal court disagrees or thinks the probabilities are against it.9 [48] Disputed findings are more susceptible to being overturned where it is logically inconsistent with the overwhelming weight of the overall evidence.10 They must stand unless the forensic advantage enjoyed by the judge was not used or “palpably misused” or the evidence acted on was inconsistent with “incontrovertibly established” facts. [49] Kirby J gave the following illustrations where an appellate court might properly review primary findings of fact said to be based on credibility in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq):11  where credibility relates only to particular aspects of the dispute and leaves untouched other evidence that requires separate evaluation;  where incontrovertible facts or uncontested testimony show that the original decision is plainly wrong;  where a finding that a witness lacked credibility was based on inadmissible evidence; 4 QCAT Act s 147(1)-(3)(b). 5 Fox v Percy (2003) 214 CLR 118, 127. 6 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1614-1615. 7 (2003) 214 CLR 118. 8 Abalos v Australian Postal Commission (1990) 171 CLR 167. 9 Devries v Australian National Railways Commission (1993) 177 CLR 472. 10 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, 331-2. 11 (1999) 73 ALJR 306 at 331-332. -- 8 of 12 -- 9  where the trial judge took account of irrelevant considerations or failed to properly weigh all relevant considerations;  where the circumstances in which evidence adverse to credibility was procured were unsatisfactory;  where the decision is contrary to the “extreme and overwhelming pressure” of the rest of the evidence or is “glaringly improbable” or is “contrary to the compelling inferences of the case”. [50] However, where the appeal tribunal is in as good a position as the tribunal was to identify the inferences that the evidence is legally capable of supporting and has a duty to make up its own mind and give effect to it.12 However, in cases where the primary facts are agreed, not contested, accepted or reasonably open on the evidence the appeal court is in as good a positon as the trial judge to draw inferences from them and if after giving proper weight and respect to the ones he or she drew must give effect to its own independent view and decide the case for itself. If the judge’s reasoning is flawed and conclusions wrong they should be corrected. [51] Inferences drawn from subsidiary facts should not be disturbed merely because an appeal tribunal prefers an alternative. However, an incorrect decision should not be upheld out of undue deference or because the challenged inferences were technically open on the evidence. If it is plainly wrong an appeal body is bound to correct it. [52] In Warren v Coombes13 a teenage bike rider cutting a corner to turn right and was seriously injured when he collided with the front of a car near a T junction. [53] The trial judge found that the bicycle was substantially on the incorrect side of the road while the car was 9 feet from the passenger’s side of the roadway. However, skid mark evidence showed that at the point of impact the car was also partly on the wrong side of the road. [54] On the assumption of a speed of 30-35 miles per hour the driver was 90 to 100 feet from the bike when he first saw it emerge from behind a 40 foot long thick hedge on the corner of the intersection. [55] The High Court overturned the conclusion of the trial judge and found that the proper inference supported by the facts was the driver was negligent in the manner he drove towards the intersection having regard to both his speed and position on the roadway. [56] The Court held “a reasonable driver in his situation should have foreseen that other person – drivers or pedestrians, adults or children – might be using those streets in a suburban residential area. … (he) must have been 90 to 100 ft from the intersection when he first saw the appellant; the fact 12 Warren v Coombes (1979) 142 CLR 531, 551. 13 (1979) 142 CLR 531. -- 9 of 12 -- 10 that he could not avoid the appellant in those circumstances indicates that he was travelling at a speed which was excessive in the circumstances”. The parties’ submissions [57] The applicant contends that the tribunal’s findings of facts should be disturbed on appeal because there is no evidence capable of supporting inferred facts or the conclusions are contrary to compelling inferences in the case. [58] He says that the only logical inference that can be drawn from the uncontested evidence is that the respondent entered the far left lane from the shoulder of the road. [59] He notes that in Annexure B the impact occurred at the commencement of the turning lane on the left hand side. [60] At [9] the respondent says the applicant’s vehicle was the last one of “approximately three or four stationary vehicles” the respondent could see waiting in the left through lane at the red traffic lights. [61] The parties agree that some time before the collision the respondent was behind the applicant. [62] On this basis the applicant argues he must have entered the turning lane from behind the applicant at the beginning of the turning lane which means the respondent must have been on the shoulder, at least partly, before the impact and not only had to give way but keep a proper lookout as well. [63] The applicant also asserts that he did not have to keep a proper lookout for a vehicle partly on the shoulder of the road and not wholly within a lane on the road. [64] The respondent submits in reply that the:  tribunal had the benefit of seeing and hearing the evidence from both parties and preferred the respondent’s account.  tribunal’s findings were open on the facts.  applicant wrongly hypothesized that the respondent attempted to enter the left hand lane from the shoulder of the road.  appellant was not keeping a proper lookout because he clearly was not aware of the proximity of his vehicle prior to the collision and must be equally ignorant of its movements prior to the collision. Accordingly, his asserted beliefs about that is not based on remembered events but misconstruction.  appellant did not meet his burden of proof for the reasons the tribunal gave. -- 10 of 12 -- 11  applicant’s submission that he was not required to keep a proper look out should be interpreted as an admission that he was not doing so contrary to every driver’s legal duty. Analysis and conclusions [65] What parties and witnesses ‘remember’ is not always what actually happened. [66] The tribunal inferred that the collision was caused by the applicant’s failure to see the respondent already in the lane to his left before he crossed into it based on the relative position of the cars on the roadway before, at and after impact. [67] The tribunal decided that the cars would not have collided with each other if the applicant had seen the respondent’s car in the process of passing him in the adjacent lane. [68] These findings are inconsistent with two key facts asserted by the applicant that are inherently credible and impliedly confirmed (or not denied) in cross- examination by the respondent. The first is that the respondent was in the same lane following behind the applicant when he passed the Mobil Service Station about 200 metres from the intersection and about 95 metres from the start of the turn left only lane. [69] The second is that consistently with the applicant’s evidence the sketch of the scene at the time of the accident he submitted with his insurance claim on 15 March 2016 and reproduced in Annexure B to his 6 July 2016 affidavit (Exhibit 2) the respondent identifies the point of impact as being at the very commencement of both the turning lane and the bike lane. On this basis the respondent claims that he activated his indicator, crossed over the bike lane at 20 kilometres per hour and to be fully established in the turning lane at impact is improbable. [70] He is much more likely to have come from the applicant’s far left moving to his right into the turning lane as the applicant was doing the same at the same moment only in reverse. [71] Critically, the tribunal failed to fully appreciate what the applicant was trying to explain about the relative positions of the cars shown in Annexure B at 1- 11:10-30. His point was that as the cars are solid not intangible objects the diagram was misleading and instead of them notionally overlapping each other the respondent’s car would have been 20 per cent further to the left putting both passenger side wheels on the shoulder. [72] Nor was the significance of the fact that the applicant (that is the lead vehicle) entered the turning lane “where the lane started from”14 and that 14 Transcript at 1-12:20 -- 11 of 12 -- 12 the respondent was not in front of him when he did so and couldn’t be seen.15 [73] Another reason to doubt the respondent’s veracity is the discrepancy between his assertion that the applicant’s car was the last in a line of 3-4 stationary at the traffic lights (approximately 15 metres) and the 105 metres between the impact and the intersection – an 80 metre difference. [74] In the circumstances the tribunal’s outright rejection of the applicant’s account as a mere hypothesis was a miscarriage of justice. It was in fact based on direct observations and compelling circumstantial evidence. [75] It was also considerably more consistent with the totality of the objective facts then the respondents. [76] The most likely explanation is that both cars moved almost simultaneously into the left hand turning lane at its inception from opposite directions – the applicant from the adjacent lane to the right and the respondent from the far left shoulder – and inevitably collided. [77] On this scenario, the respondent negligently failed to allow for the likely movement of cars to his right unaware that he was where he should not have been and could not be seen. [78] However, the applicant failed to drive with due care and attention too because he should not have acted solely on the reasonable expectation that it was safe to change lanes. He should have expected the unexpected and allowed for the reasonable possibility that a following car or, even more likely, a cyclist may be competing for its space, checked his mirrors and indicated his intention before moving out of his lane. If he did that the respondent may have been alerted to stop or he might have seen the ute in his peripheral vision and taken effective evasive action. [79] The respondent should contribute 50 per cent (or $2,214.93) of the liability for the cost of repairing the damage to the applicant’s vehicle. [80] Orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The tribunal’s decision is set aside and an order that the respondent pay the applicant $2,214.93 in compensation and $315.70 filing costs is substituted. 15 Transcript at 1-12:30-35 -- 12 of 12 --