Egerton t/as Koala Blue Tours v Wickham [2017] QCATA 25

CITATION: Egerton v Wickham [2017] QCATA 25 PARTIES: William Egerton t/as Koala Blue Tours (Applicant/Appellant) v Stuart Wickham (Respondent) APPLICATION NUMBER: APL323-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 20 February 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: APPEAL – LEAVE TO APPEAL – TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK OUT – GENERALLY – where collision between bus and ute – where bus turning right – where ute travelled up right- hand lane beside bus – where bus driver did not see ute – where tribunal dismissed claim for damage to bus – whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO GIVE WARNINGS OR SIGNALS - where collision between bus and ute – where bus turning right – where ute travelled up right- hand lane beside bus – where driver of ute alleged no signals on the bus - where tribunal dismissed claim for damage to bus – whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – INTERFERENCE WITH FINDINGS OF FACT – -- 1 of 4 -- 2 PROOF AND EVIDENCE – OTHER MATTERS - where collision between bus and ute – where bus turning right – where ute travelled up right- hand lane beside bus – where tribunal dismissed claim for damage to bus – whether grounds for leave to appeal Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 77, s 143 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] A bus driven by William Egerton’s employee, and a ute driven by Stuart Wickham, collided at Riverview. Mr Egerton filed a claim for the cost of repairing the damage to his bus, claiming that Mr Wickham caused the collision. The tribunal dismissed Mr Egerton’s claim. [2] Mr Egerton wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [3] Mr Egerton says that the tribunal erred in not requiring him to give sworn evidence. He says the tribunal erred in allowing Mr Wickham’s father to speak from the back of the hearing room. He says the tribunal made a mistake of fact or mixed fact and law. Should the tribunal have required Mr Egerton to give sworn evidence? [4] Mr Egerton was not driving the bus. Therefore, he could not give evidence about what happened to cause the collision. Mr Egerton was making submissions about what conclusions the tribunal should make, and the law that applied, but they are not matters that require a party to be sworn. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 [5] Mr Harding, the driver, gave sworn evidence.3 Mr Wickham gave sworn evidence.4 That was appropriate. The tribunal did not err in failing to have Mr Egerton sworn in to give evidence. Did the tribunal err in accepting evidence from Mr Wickham’s father? [6] At one stage of the proceeding, from the back of the hearing room, Mr Wickham’s father said:5 Excuse me Your Honour? He – your Honour, the insurance Stuart has is third party property insurance. So if he is – damages someone else’s property, the insurance will cover it but they won’t cover his property. [7] The comment was not relevant to the matter the tribunal had to decide and it had no bearing on the tribunal’s decision. If it had been important, the tribunal could have called Mr Wickham Senior to give evidence. While the interjection was unfortunate, it did not result in tribunal error. Did the tribunal err in fact? [8] Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.6 An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.7 [9] Mr Egerton says the tribunal did not give any weight to Mr Harding’s evidence even though he said he was a credible witness. [10] The tribunal carefully explained why it preferred Mr Wickham’s evidence over Mr Harding’s evidence. The tribunal referred to the inconsistency in Mr Harding’s evidence that the bus was (or was not) straddling the white line.8 The tribunal found the damage to the bus inconsistent with Mr Harding’s version of events.9 The tribunal found that Mr Wickham was stationary at the time of the collision because Mr Harding did not see Mr Wickham but Mr Wickham did see Mr Harding.10 The evidence can support the tribunal’s findings and I can find no compelling reason to come to a different view. [11] Mr Egerton’s submissions to the appeal tribunal explain the geometry of a turning bus. The tribunal had the benefit of evidence to that effect and submissions by Mr Egerton. The tribunal did not accept those submissions 3 Transcript page 1-16, line 15. 4 Transcript page 1-25, line 29. 5 Transcript page 1-13, lines 19 – 22. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 8 Transcript page 1-36, line 41 to page 1-37, line 5. 9 Transcript page 1-37, lines 5 – 11. 10 Transcript page 1-37, lines 13 – 23. -- 3 of 4 -- 4 and it is not my task to re-examine those submissions and, perhaps, to come to a different view. [12] Finally, Mr Egerton submits that the tribunal did not take proper account of the rules relating to giving way to buses11 or passing or overtaking a vehicle displaying a do not overtake sign.12 [13] The tribunal acknowledged Mr Egerton’s submissions about the road rules13 but found that the existence of the rules did not, of themselves, mean that Mr Wickham was automatically liable.14 The tribunal decided its task was to decide which driver caused the collision. It is implicit in the tribunal’s decision that it did not consider that Mr Wickham did breach the road rules. I agree with the tribunal’s approach. Its task was not to determine whether there had been a breach of the road rule, but to determine who caused the collision. Whether or not there was a breach of the road rules is a matter for a different hearing. [14] There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. 11 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 77. 12 Ibid s 143. 13 Transcript page 1-34, lines 6 – 18. 14 Transcript page 1-35, lines 44 – 46. -- 4 of 4 --