Tan v Silverdale Sand & Soil Pty Ltd [2014] NSWSC 391

Supreme Court New South Wales

Medium Neutral Citation: Tan v Silverdale Sand & Soil Pty Ltd [2014] NSWSC 391 Hearing dates: 13 December 2013 Decision date: 04 April 2014 Before: McCallum J Decision: Appeal dismissed Catchwords: LOCAL COURT - appeal - whether Magistrate erred in allowing witness to give evidence via mobile phone - whether Magistrate erred in failing to give adequate reasons Legislation Cited: Civil Procedure Act 2005, s 56 Evidence (Audio and Audio Visual Links) Act 1998, s 5B Local Court Act 2007, s 39 Uniform Civil Procedure Rules 2005, r 31.3 Cases Cited: Beale v GIO [1997] 48 NSWLR 430 Keith v Gal [2013] NSWCA 339 Whalen v Kogarah Municipal Council [2007] NSWCA 5 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 Category: Principal judgment Parties: Kim Chuan Tan (plaintiff) Silverdale Sand & Soil Pty Ltd (1st defendant) Carl Andrew Smith (2nd defendant) Representation: Counsel: J Gruzman (plaintiff) C Jackson (defendants) Solicitors: Gells Lawyers (plaintiff) Lee & Lyons Lawyers (defendants) File Number(s): 2013/234175 Publication restriction: None

Judgment 1HER HONOUR: This is an appeal from a decision of the Local Court sitting in its General Division. An appeal against such a decision may be brought as of right on a question of law: s 39 of the Local Court Act 2007. 2The proceedings in the Local Court arose from a collision on the Warringah Freeway between a Mercedes Benz driven by the plaintiff, Dr Tan and a truck and trailer driven by the second defendant, Mr Smith. Mr Smith is an employee of the first defendant. Dr Tan claimed $55,000 for damage caused to his car. The damage to the truck was confined to one of the tyres on the trailer, which was replaced at the cost of $450. There was no cross-claim to recover that cost. Damage and quantum were agreed. The only issue at the hearing was liability. 3Dr Tan was driving with his wife from Killara to the city to have lunch. He entered the Warringah Freeway from Willoughby Road. He said that he drove on that Freeway about twice a week. He was heading for the Harbour Bridge. Mr Smith was carting a load of sandstone from Chatswood to Kurnell. He had been driving that route approximately 25 times a week for nine months. He was heading for the Harbour Tunnel. 4There were competing versions as to how the accident occurred. Dr Tan said that, after entering the freeway, he was proceeding in the left-most lane (which I will call the first lane) when the truck came level with his driver's side door and moved into his lane, colliding with the right-hand side of his car and forcing the passenger side into contact with the gutter. He said that his car was scraped against the entire length of the truck and trailer. 5The defendants' case was that the truck was driving in the second lane when Dr Tan attempted to change lanes so as to move in behind it, failing to notice the trailer (which was connected to the truck by a drawbar) and colliding with the corner of the trailer before bouncing off it and hitting the kerb. 6Dr Tan's version was corroborated by his wife, who was a passenger in the car. The defendants' version rested mainly on the evidence of another truck driver employed by the first defendant (referred to in this judgment as the witness). The witness stated that he was driving his truck approximately 30 metres behind Mr Smith's truck when the accident occurred. The witness said that it was the Mercedes that changed lanes, not the truck. Mr Smith was unaware of the collision until he was informed of it by the witness on the two-way radio. Mr Smith could thus give no evidence of any observation of the actual collision. He was able only to say that he had not changed lanes and that he had no need to change lanes, since he was heading for the Harbour Tunnel. The lane he was in heads straight to the tunnel. 7In a decision based largely on the credibility of the witness, the learned Magistrate accepted the defendants' version of events and dismissed the plaintiff's claim with costs.