Solicitors:
Robertson Saxton Primrose Dunn (Appellants)
Gillis Delaney Lawyers (Respondents)
File Number(s): 2014/139112
Decision under appeal Court or tribunal: Local Court of New South Wales
Date of Decision: 11 April 2014
Before: Stapleton LCM
File Number(s): 2012/204071
[2]
Judgment
Introduction
This is an appeal brought pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) from the verdict and orders of a Magistrate sitting in the civil jurisdiction of the Local Court. It was accepted by senior counsel for the appellants that, pursuant to those appeal-creating provisions, they possess an appeal founded upon a question of law as of right, and an appeal founded upon a question of mixed fact and law by leave only. There is no right of appeal with regard to a question of fact alone: see Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ).
The appellants are a corporation and a natural person, Ms Foukkare, who was an employee of that corporation. She was driving an ambulance at the time of a motor vehicle collision that gave rise to the proceedings in the Local Court. The respondents to the appeal are a corporation and a natural person, Mr Edwards, who was an employee of that corporation. He was driving a truck at the time of the collision.
The appellants in this Court were the defendants in the Local Court. There was also a cross-claim brought by the defendant corporation in the Local Court against both Mr Edwards and his employer. In that rather complicated context, I shall, in the interests of comprehension and concision when discussing legal submissions, refer to the appellants in this Court compendiously as "the ambulance driver", and refer to the respondents in this Court compendiously as "the truck driver".
Background
The facts are straightforward. Early on the morning of 25 July 2008, the truck driver and the ambulance driver were driving their vehicles east on a suburban road of Sydney. The ambulance driver and her offsider had received a message to attend an emergency. When they left their base, they had both lights and sirens activated. Whilst travelling east, because of the amount of traffic up ahead on the same side of the road (that is, the northern side), the ambulance driver made a decision to cross to the "wrong" side of the road; that is, the southern side whilst travelling east.
Meanwhile, the truck driver, who had been up ahead, moved his vehicle to the right-turning lane in order to turn right (that is, south). He had his right-turning indicator on. As one would expect, his attention was focused upon the oncoming traffic to the east, across the path of which he was to turn.
As he performed that turn, the ambulance struck the truck on its right hand side. Serious injury and damage was caused as a result of the collision.
At first instance, there were four possible outcomes of the litigation. The first was that the truck driver alone had been negligent. The second was that the ambulance driver alone had been negligent. The third was that each driver was negligent, thereby giving rise to considerations of contributory negligence. The fourth was that neither driver was negligent, and the collision was a true "accident".
There is no need for me to recount the pleadings in detail. Suffice to say that by the close of the pleadings each driver was denying that he or she was negligent, and asserting that the other driver was negligent.
There were two central questions of fact for determination by her Honour. The first was whether or not the lights of the ambulance were activated at the time of the collision. The second was whether the siren of the ambulance was activated at the time of the collision.
It is noteworthy that an affidavit of the offsider of the ambulance driver was read in her case in the proceedings at first instance, and he was not cross-examined upon it by counsel for the truck driver. Accordingly, the following sworn evidence in that affidavit can be taken as accepted:
[7] In the early morning shortly before the accident, [the ambulance driver] and I were tasked to attend a motor vehicle accident ('MVA') at the tollgates of the South Western Motorway.
[8] [The ambulance driver] drove the Ambulance from the Ambulance Station under lights and sirens. I was sitting in the passenger seat with my seatbelt fastened. All motor vehicle accidents are classified Class One (unless you are being called for backup). I cannot remember any specific details about the job we were called to or what we were told about it. I do remember that we were treating it as a Class One incident at all times.
…
[13] [The ambulance driver] crossed the median strip to the westbound lanes of Newbridge Road. I cannot remember where we crossed the median strip. I do recall that the median strip where we crossed was around a metre wide and grassed in the centre. [The ambulance driver] continued to drive in the oncoming traffic lane closest to the median strip. The ambulance was still under lights and sirens as it had been since we left the station.
[14] After about three seconds driving east in the westbound lanes on Newbridge Road I do not remember anything at all. I cannot say how far we travelled along Newbridge Road, where or how the accident occurred.
[15] The next memory I have is being in the resuscitation room at Liverpool hospital. As far as I have been able to reconstruct, I have lost about 1 hour and 20 minutes of memory.
The affidavit of the offsider did not speak in terms as to whether or not the siren was on at the time of the collision. It said nothing about either the offsider or the ambulance driver deactivating the siren.
The position of the ambulance driver was that the siren was on, and neither she nor her offsider deactivated it before the accident. As one would expect, she also did not assert that she had a perfect recollection of the seconds before the impact.
A Mr Ali Rihani was also driving east on the road in question that morning. Using his rear-view mirror, he heard and saw the ambulance as it approached him from behind (that is, from the west). He noted that the lights and siren were activated. That was some distance before the point of collision. His evidence was that he was unable to say with certainty that the siren was activated at the time of the collision.
The evidence of the truck driver was that he did not hear the siren in the moments before the collision. His evidence was also that there was nothing that would have impeded him from doing so if the siren had been sounding.
Role of the Road Rules 2008
It can be seen that her Honour's judgment placed a great deal of weight on whether or not there had been a breach of the Road Rules 2008 (NSW) by either the ambulance driver or the truck driver. The judgment includes quite a lengthy discussion of whether or not the criminal defence provided to certain persons contained in r 306 had been established. That rule was, as at the date of the collision, as follows:
306 Exemption for drivers of emergency vehicles
A provision of these Rules does not apply to the driver of an emergency vehicle if:
(a) in the circumstances:
(i) the driver is taking reasonable care, and
(ii) it is reasonable that the rule should not apply, and
(b) if the vehicle is a motor vehicle that is moving - the vehicle is displaying a blue or red flashing light or sounding an alarm.
Before me, the parties were agreed that the correct position with regard to the relationship between an asserted breach of a criminal statute (or, as here, delegated legislation to do with criminal liability) and civil liability for the tort of negligence is encapsulated in what was said by Meagher JA (with whom Gleeson and Sackville AJA agreed) in Verryt v Schoupp [2015] NSWCA 128 at [4]:
Neither party referred to or relied upon any Australian Road Rule as relevant to the determination of any question of negligence and contributory negligence. That is perhaps explicable on the basis that the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules. Nevertheless, the fact that particular conduct is prohibited may in some cases be a factor pointing to the conclusion that reasonable care was not taken: per Bell JA (as her Honour then was) with whom Mason P agreed in Kollas v Scurrah [2008] NSWCA 17 at [76]. See also Sharpe v Gordon; QBE Workers Compensation NSW (Ltd) v Gordon [2006] NSWCA 347 at [5] - [6]; and Penrith City Council v East Realisations Pty Limited (in liq) [2013] NSWCA 64 ay [53] - [54].
It is true that the degree to which the judgment of her Honour in this civil matter focuses upon delegated legislation that gives rise to criminal offences, and defences to those offences, is at first surprising. But a reading of the pleadings and the oral submissions made at first instance shows how that came to occur. I proceed to detail that development.
It can be seen that one of the particulars of negligence asserted by the truck driver in the amended statement of claim of 23 August 2012 was "failure to comply with the Australian Road Rules". It can also be seen that, in the defence to that amended statement of claim of the ambulance driver of 27 September 2012, reliance was placed upon "sections 78, 79 and 306 of the Australian Road Rules". In similar terms, the cross-claim of the ambulance driver of 27 September 2012 made specific reference to a "failure to comply [on the part of the truck driver] with the Australian Road Rules, particularly rule 78 and 79".
At the relevant time, r 78 was as follows:
78 Keeping clear of police and emergency vehicles
(1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
…
(2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.
…
(3) This rule applies to the driver despite any other rule of these Rules.
At the relevant time, r 79 was as follows:
79 Giving way to police and emergency vehicles
(1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
Note 1. Emergency vehicle and police vehicle are defined in the Dictionary.
Note 2. For this rule, give way means:
(a) if the driver is stopped - remain stationary until it is safe to proceed, or
(b) in any other case - slow down and, if necessary, stop to avoid a collision,
- see the definition in the Dictionary.
(2) This rule applies to the driver despite any other rule that would otherwise require the driver of a police or emergency vehicle to give way to the driver.
A reading of the transcript of proceedings in the Local Court shows that both parties consistently directed her Honour's attention to the Road Rules, and were content when her Honour turned to them of her own motion: see, for example, pp 6.24; 7.7; 7.9; 25.10; 80.13; 84.32; 87.22; 101.27; and 101.28. Indeed, as p 6.28 of the transcript shows, counsel for the ambulance driver provided her Honour with "a copy of what we say [are] the relevant Road Rules" shortly after proceedings had commenced.
During the course of the hearing, counsel for the truck driver said at p 80.4 of the transcript that the Road Rules (and in particular, r 306), did "not operate to protect [the ambulance driver]", since her driving was negligent in the circumstances. As well as that, counsel for the ambulance driver said at p 88.22 of the transcript that "Rules 78 and 79 were applicable" in the circumstances and, accordingly, the ambulance driver should be exempt from liability.
Counsel for the ambulance driver also submitted at p 83.8 of the transcript that "Road Rules, Road Rule 78. 79 and 306 apply in this case to like effect in that the ambulance travelling in the westbound lane had the right of way to vehicles coming in any direction of it".
It is also noteworthy that, at p 100.5 of the transcript, counsel for the ambulance driver addressed her Honour directly on the question of interpretation and submitted that "a very strict application of rule 306 would render the exemption for emergency vehicles nugatory; it would be against the policy of the law".
In other words, to my mind, it is tolerably clear that both parties were content for her Honour to determine the question of the establishment (on the balance of probabilities) by one party of the tort of negligence having been committed by the other very largely by way of reference to the Road Rules.
Findings in the judgment at first instance
In the event, her Honour found that the siren of the ambulance was not activated at the time of the collision. That finding underpinned the determination that the truck driver had not been negligent in the moments before the collision with regard to an impact with a vehicle that was approaching him from behind on the wrong side of the road.
Her Honour did find that the lights of the ambulance were on. But that was of no great moment, because the truck driver was naturally focusing upon the oncoming traffic in front of him, to the east, as he performed the turn to the south, and not (by way of his mirrors) upon what may have been behind him to the west.
The learned Magistrate found that the ambulance driver had been negligent and that the truck driver had not been. A number of findings of fact underpinned that evaluation.
First, the driving by the ambulance driver at a speed of 80 km/h on the wrong side of the road was, in all the prevailing circumstances, not reasonable, not prudent, and recklessly fast.
Secondly, the right-hand turning indicator of the truck was on, but the ambulance driver did not see it because "she was travelling so fast…and with such little focus on what was going on on the right-hand side of the road [that is, the right-hand portion of the northern side] that she missed that indicator".
Thirdly, the ambulance driver should have made a continuing assessment of whether it was appropriate at any stage to return to the correct side of the road, but she did not.
Fourthly, the siren of the ambulance was not activated at the time of the collision.
The result at first instance was that the statement of claim of the truck driver was upheld and the cross-claim of the ambulance driver was dismissed.
Grounds of appeal
It is convenient now to turn to the seven grounds of appeal notified in the summons filed on 8 May 2014 and pressed by the ambulance driver at the hearing. They are as follows:
1. The Learned Magistrate erred in law by failing to determine the pleaded issues of:
(a) whether either of the parties were negligent and if so which party;
(b) contributory negligence.
2. The learned Magistrate erred in law by failing to provide proper reasons to the extent that the Court found that the Plaintiffs in the Court below were negligent.
3. The Learned Magistrate erred in law in failing to apply the proper test in determining the issue of negligence insofar as the Court found that negligence arose directly if Rule 306 of the Road Rules did not apply.
4. The Learned Magistrate erred in law in interpreting Rule 306 of the Road Rules and by taking into consideration irrelevant matters in determining under Rule 306 of the Road Rules whether it was reasonable that the Road Rules should not apply.
5. The Learned Magistrate denied the First Defendant natural justice in finding that the ambulance driver did not act reasonably because she failed to make a re-assessment that she ought, at least after the intersection of Macquarie Drive and Newbridge Road, cross back over to the east-bound lanes.
6. The Learned Magistrate erred in law or in fact in finding that there was no evidence about the nature of the emergency that the ambulance driver was attending.
7. The Learned Magistrate erred in law or in fact in finding that the ambulance vehicle's siren was not activated shortly prior to the collision where such finding was contrary to the preponderance of evidence.
Grounds one and two
I consider that it is appropriate to deal with grounds one and two together.
The ambulance driver submitted that, taking the judgment as a whole, it does not sufficiently explain how her Honour came to be satisfied that the ambulance driver was negligent, and the truck driver was not. Indeed, it can be seen from ground one that it is contended that there was a failure to determine the pleaded issues of negligence and contributory negligence.
As I have said, it is noteworthy that the judgment says little, if anything, about the elements of the tort of negligence at common law, as modified by the provisions of the Civil Liability Act 2002 (NSW). At first blush, the submissions of the ambulance driver have force in those circumstances. But reading the entire transcript of the hearing, with particular emphasis on the position adopted by the ambulance driver at first instance, it can be seen that her Honour did what she was asked to do; namely, determine the issues of fact, and thereafter decide which party (if either) could avail himself or herself of the Road Rules.
In light of the way the proceedings were conducted by both parties at first instance, I do not consider that the judgment is open to the criticism for which the ambulance driver now contends.
Separately, it was said before me that it was incumbent upon the learned Magistrate, having found that the siren was not on at the time of the collision, to provide an affirmative hypothesis as to how that came to be the case, in light of the undisputed evidence of the offsider and others that it had been activated at an earlier part of the journey.
I reject that submission. It was incumbent upon the Magistrate to make findings on the balance of probabilities about the disputed facts to which legal principles needed to be applied, thereby giving rise to a verdict. I do not consider that it was incumbent upon the Magistrate to demonstrate a mechanism whereby the siren was not operating at the time of the collision. It is possible to posit various theses for that state of affairs: for example, deliberate deactivation; accidental deactivation; malfunction. But I do not consider that the reasons of her Honour were deficient in failing to make anterior findings of fact underpinning the central factual question that required determination. That is especially so in the context of there being evidence from the truck driver, which her Honour was well entitled to accept, that the siren was simply not sounding at the time of the collision.
I reject grounds one and two.
Grounds three and four
I consider that grounds three and four can be dealt with together as well.
As I have said, there is force in the proposition that the judgment is unorthodox, in that it says virtually nothing about the elements of the tort of negligence, and focuses very largely on questions of the Road Rules. If that course had been adopted by her Honour contrary to the submissions of the ambulance driver at first instance, I would uphold this appeal. That is because, as I have shown by way of a judgment of the Court of Appeal, the proper role of the Road Rules was nothing more than to inform the question of whether or not negligence had been established by either party or both.
However, the references to the transcript of proceedings at first instance that I have provided above show that each party was content for her Honour to decide the question of the establishment of negligence by way of reference to those rules. The ambulance driver never submitted at first instance that the Magistrate was falling into error by focusing on the Rules; to the contrary, submissions were made about them that implicitly accepted the correctness of the approach adopted by her Honour.
Where a judicial officer decides a case in the way it has been conducted, and adopts a "shorthand" or "shortcut" legal analysis for which the parties have jointly contended, it will only be in rare cases that an error of law in doing so can subsequently be established on appeal by one of those parties. I do not consider that this is one of those cases.
I would not uphold grounds three and four.
Ground five
Ground five was explained before me by senior counsel as follows. It was said that, to the extent that the Magistrate, sitting as the tribunal of fact and law, made an adverse evaluation of the driving of the ambulance driver, her Honour should have put that adverse proposition to the ambulance driver, who was, of course, a party and a witness, in order to permit her to comment upon it.
To be clear, the submission was not that it was incumbent upon opposing counsel to put the proposition to the witness in cross-examination, in accordance with the well-known rule in Browne v Dunn (1893) 6 R 67. Nor was it the submission that, as a matter of procedural fairness, it was incumbent upon the Magistrate to raise with counsel for the ambulance driver, during his final address, the possibility that an adverse finding would be made about the conduct of his client. The submission was that it was incumbent upon the Magistrate to put to the witness the possibility of the adverse finding, in order to give the witness a chance to rebut it.
No authority was provided in support of the submission that a tribunal of fact must put to a witness a possible adverse finding to a witness whilst he or she is in the witness box. I reject that proposition. Were it correct, no jury would be entitled to reject the self-exculpatory evidence of an accused person and return a verdict of guilty on an indictment without the jury first having itself somehow questioned the accused in the witness box. That is not the law of New South Wales.
I would not uphold ground five.
Ground six
Ground six focuses upon the following paragraph from p 5 of the judgment:
It seems to me that a further part of the assessment of whether it was reasonable that the rules should not apply, is how serious was the emergency she was attending. I accept that it was a lights and siren emergency which is a class of emergency where drivers are required to put on their lights and sirens so as to require, pursuant to the relevant rules, 78 or 79 I think it was, that vehicles move out of the way. But, to my mind, there must be a range of emergencies within that rule and there's no evidence about what she was going to attend to. So there was no way to balance up whether the risk created by driving in the wrong direction on Newbridge road with the risk that drivers might turn right off it because they wouldn't see it coming from behind, was a reasonable risk to take in the circumstances so that the rules should not apply. There was just no evidence in the defence case about it.
[Emphasis added.]
It was said that, at the least, it was an error of mixed law and fact with regard to which leave should be granted for her Honour to say that there was "no evidence about what she [the ambulance driver] was going to attend to".
But to my mind, that was a statement that was objectively correct: there was indeed no evidence in the hearing about the details of the particular emergency to which the ambulance driver was travelling. Immediately before the impugned clause in the same paragraph, her Honour referred explicitly to the fact that it was a "lights and siren" emergency, and implicitly to the fact that it was a "class one" emergency. Reading the paragraph as a whole, it does not demonstrate error.
I would reject ground six.
Ground seven
In support of ground seven, reliance was placed upon what was said by Hall J in US Manufacturing Co Pty Limited v ABB Service Pty Ltd [2008] NSWSC 705 at [54]. There his Honour said:
It is clear that an error in point of law may include:-
(1) A finding where there is no evidence to support it or draws an inference from facts that cannot be reasonably drawn.
(2) A finding that no person acting judicially and properly instructed as to the relevant law could have made.
(3) Where a Court has misdirected itself in law: Australian Gas Light Co v Valuer-General (supra).
It can be seen that his Honour was referring to the very well-known taxonomy of Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138 with regard to errors of fact and errors of law. There his Honour relevantly said:
…
(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences.
(4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences or, (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law.
In support of this ground, the ambulance driver submitted that the fact that the truck driver did not hear the siren, in circumstances in which one might expect him to hear it, was no evidence for the proposition that it was not activated at the time. It was said that that was merely evidence of his failure to hear the siren, nothing more.
In short, it was said that there was no evidence, on that analysis, that the siren was not in operation at the time of the collision, and accordingly an error of law had occurred.
In the alternative, it was said that the vast preponderance of the evidence was that the siren was operating at the time of the collision, and, in accordance with what Hall J has said, that of itself constituted an error of law.
Turning to the primary submission, I reject the proposition that the fact that an eye witness did not see something, or an "ear witness" did not hear something, is not, at the least, circumstantial evidence that can be taken into account as to the existence or not of the subject matter that was not perceived. Evidence from a witness that he or she did not perceive an event when he or she was in a position to perceive it is evidence (though not, of course, conclusive evidence) that the event did not occur. For that reason, I reject the submission that there was no evidence that the siren was not operating at the time of the collision. To the contrary, the evidence of the truck driver constituted evidence of that state of affairs.
Secondly, accepting for the sake of argument the correctness of the proposition that a finding of fact against the great preponderance of evidence can constitute an error of law, I do not accept that that is what occurred in this case. The Magistrate heard in the witness box from the ambulance driver, the witness Mr Rihani, and the truck driver. Her Honour was in a position to make assessments of demeanour and presentation that are, of course, completely denied to me. Whilst I respectfully consider that the finding that the siren was not operating at the time of the collision is a surprising one, to my mind it was open to the evaluation of her Honour.
I would reject ground seven.
Conclusion
All grounds having been rejected, the appeal must be dismissed.
Costs
Neither party submitted that costs should not follow the event.
Orders
I make the following orders:
1. Appeal dismissed.
2. The first plaintiff and the second plaintiff must pay the costs of the appeal of the first defendant and the second defendant.
[3]
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Decision last updated: 01 July 2015