MCADAM v ROBERTSON

Supreme Court of SA|2001-06-15|Before: Nyland JJ, Olsson J

The applicant, Ms Louise McAdam, had suffered serious injuries in a motor vehicle collision on 20 April 1993 when the motor car she was driving collided with a truck driven by the respondent, Mr Robertson. Ms McAdam brought an action for damages in the Magistrates Court against Robertson claiming damages for the injuries she had received. We will hereafter refer to Ms McAdam as "the plaintiff" and to Mr Robertson as "the defendant". The magistrate dismissed the plaintiff's claim finding that she had not proved that the defendant was negligent.

The plaintiff appealed to a judge of this Court (Olsson J) who allowed the appeal and set aside the order of the magistrate. The judge held that the defendant was 70 per cent responsible for the collision and awarded the plaintiff 70 per cent of the agreed amount of damages. The defendant then appealed to the Full Court ("the first Full Court") which allowed the appeal, set aside the decision of Olsson J and restored the decision of the magistrate. The first Full Court held that the criticisms by Olsson J of the magistrate's reasoning were unsound. The court published its reasons on 26 November 1998.

In the course of its reasons, the first Full Court had misstated some matters of fact. On 15 January 1999, some two months after the first Full Court had delivered its judgment, the plaintiff applied to a differently constituted Full Court ("the second Full Court") to recall and reopen the orders made by the first Full Court and to grant a rehearing of the appeal. The application was heard on 9 March 1999. The second Full Court published its reasons on 6 May 1999 holding that the application should be considered by the first Full Court as it had power to reopen its decision. The first Full Court should be reconstituted, it said, only if there is good reason to do so. The second Full Court also held that the first Full Court had erred in a manner which gave it power to reopen its decision but expressly refrained from making any comment on the strength of the plaintiff's case. It is unnecessary to restate in full the reasons of the second Full Court. They are reported in McAdam v Robertson [1999] SASC 169; (1999) 73 SASR 360.

The matter came before the first Full Court again on 28 October 1999 on an application by the defendant to recover the money he had paid pursuant to the order of Olsson J. The parties sought an adjournment to endeavour to agree a compromise. The first Full Court was, of course, aware of the decision of the second Full Court. It drew the attention of the parties to the fact that Millhouse J was due to retire in December 1999. Counsel for the plaintiff stated that the plaintiff would not object to a differently constituted Full Court or a Full Court comprising only Debelle and Nyland JJ hearing the defendant's application. Later that day, the parties agreed a compromise of the defendant's application and the application was relisted that afternoon. The court made orders by consent. Counsel for the plaintiff informed the court of an application for leave to appeal to the High Court from the order of the second Full Court. The application for leave to appeal was heard on 24 March 2000. Leave was refused.

On 23 May 2000 the plaintiff applied to have her application, dated 15 January 1999, listed for hearing before the first Full Court. As Millhouse J had by this time retired, we considered whether it was necessary to reconstitute the court. We decided not to do so. The Full Court consists of not less than three judges of the Supreme Court and, if three judges are not available to sit, any two judges: s 5(1) of the Supreme Court Act 1935. The second Full Court had ordered that the application be heard by the first Full Court which had originally heard and determined the appeal. As the retirement of Millhouse J had the consequence that it was not possible for the first Full Court to sit as originally constituted and, as s 5(1) permits a Full Court to be constituted by two judges, we concluded that we had jurisdiction to hear the application. As the plaintiff's application sought to reopen the decision, it was desirable that the application be heard by the judges who had heard the original appeal without the addition of any other member of the court. The application was listed for hearing on 16 November 2000.

After the High Court had refused leave to appeal, the defendant had sealed the order of the first Full Court made on 26 November 1998. The defendant does not rely on that fact and acknowledges that there is no technical impediment to our hearing the plaintiff's application dated 15 January 1999. The defendant's attitude is that, if there are grounds to reopen the judgment, the sealing of the order is no obstacle.

The jurisdiction of the court to reopen an appeal was examined by the second Full Court in McAdam v Robertson (supra) at 364 - 367. It is unnecessary to repeat what the court said. We have regard to those remarks and to the remarks of the High Court in Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 and in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300. As Mason CJ said:

"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the parties seeking the rehearing. The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to reargue their cases."

To use the words of the second Full Court (at 367), there must be a misapprehension in a significant respect as to the facts or law. It is not an opportunity to seek to persuade the court to change its mind on something it has already decided. We have also had regard to the remarks of the High Court in De L v Director-General, N.S.W. Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215 and, in particular, to the following passage:

"The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law', where 'there is some matter calling for review' or where 'the interests of justice so require'." (Footnotes omitted.)

As the court noted a few lines later, by such expressions of the power to reopen, courts seek to recognise the competition between the principle which requires finality of litigation on the one hand and, on the other, the recognition that accidents and oversights can occur which if unremedied will cause injustice.

Mr Wells QC, who appeared for the plaintiff, submitted that the misstatements were errors of fact which related to the very circumstances in which the collision occurred and thus bear upon the question whether the defendant had acted in breach of his duty of care to the plaintiff. None of the errors, he contended, can fairly be explained as a slip of the pen. He further contended that we had misunderstood the role of an appellate court and had misapplied principle when considering the issue of causation. The interests of justice, he submitted, required that we grant leave to reopen and hear the appeal again.

The fact that our reasons for judgment contain misstatements of fact is a matter for real regret and we apologise to both parties. However, as the second Full Court said in its reasons (at 367), some of the errors to which the plaintiff points "appear to be quite trifling, and on the face of things can be put to one side". For the reasons which follow, almost all are quite clearly inadvertent mistakes which do not materially affect the court's reasoning. The issue is whether the misstatements of fact affected the court's ultimate conclusion.

It is convenient first to deal in turn with each of the errors of which the plaintiff complains and to note our response to them. We shall then examine the errors as a whole. We assume that the reader has a copy of our reasons given on 26 November 1998. We shall not, therefore, recapitulate those reasons nor restate the facts relating to this collision.

(1) In para 1 of the reasons the date of the accident is misstated as being 20 April 1994 instead of 20 April 1993. The only error is in the year of the accident. It is a mere slip, not of the pen, but of attention to detail. The error is of no consequence. An error as to the date would be material only if the incorrect month were stated and that might bear upon the question whether there was sufficient natural light or some other matter relevant to the cause or causes of the motor vehicle collision. In other circumstances, an incorrect date might be material. It is not in this case.

(2) In para 1 of the reasons it is stated that the plaintiff was driving on the southern carriageway of Bagster Road, Salisbury North. In fact, she was driving on the southbound carriageway of that road. Here again, the error is of no consequence. Compass directions were of no consequence in determining questions of liability.

(3) When describing the scene of the accident, we said in para 5 of the reasons:

"Approximately 103 metres after the roundabout there is a railway crossing. After the crossing, Bagster Road proceeds on a steady downhill decline."

That is inaccurate. After the railway crossing, there is a dip in the road just after a motor car crosses the railway line and enters the intersection before travelling along Bagster Road. Both the intersection and that part of Bagster Road south of the intersection are level. Although the topography is wrongly stated, it is readily apparent from our reasons that the assertion that Bagster Road proceeded on a steady downhill decline had no bearing whatsoever on issues as to liability.

(4) In para 6, the reasons for judgment referred on one occasion to "the respondent" instead of to "the appellant". In the appeal to the first Full Court the plaintiff was the respondent and the defendant was the appellant. It is necessary to set out the whole of the paragraph in the form in which it appeared in the reasons for judgment.

"The appellant, in the meantime, had positioned his tow truck on the driveway of his house premises which were situated on the eastern side of Bagster Road. He had loaded a motor vehicle on to the top tray. The length of the tow truck was approximately 30 feet and its total weight was roughly four tonnes. The respondent said at night time you could just see lights a little bit past the railway line. He said that he looked to his right and he could not see anything coming. He pulled out slowly because of the incline on the driveway. He swung wide to the left, staying on his side of the road and then proceeded to straighten up. As he straightened up he looked in his right hand mirror and he saw the respondent's Volvo coming off the median strip to the north of his position."

When the paragraph is read as a whole, it is manifestly clear that the expression "the respondent" is an inadvertent error, almost a slip of the pen. The context, and especially the repetitive use of the pronoun "he", particularly in the sentence immediately following the sentence in which "the respondent" appears, makes it abundantly clear that the court intends to refer to the appellant and not to the respondent.

(5) In para 7 of the reasons, reference is made to the fact that a police officer, Constable Vincent, came to the scene of the accident. In paras 8 and 9, we refer to the statements Constable Vincent took from witnesses and from the defendant. Paragraph 8 contains an error. It begins:

"Constable Vincent interviewed the respondent at the scene but she declined to make a statement."

The reference to "the respondent" in that sentence is to the plaintiff. The plaintiff did decline to make a statement but not at the scene of the accident. She was seriously injured and was in no position to make a statement. Constable Vincent did not attempt to take a statement from her at that time. Later, on 23 June 1993, Constable Vincent spoke to the plaintiff in the presence of her father, mother and brother. She exercised her right to silence and declined to answer questions. The error is only as to the time when the plaintiff declined to answer questions. More significantly, we did not in any sense make any use of the fact that she had declined to make a statement as Mr Wells QC suggested in his argument. To do so would be an obvious breach of an extremely well-known principle, a principle which each of us is all too well familiar, particularly as we are constantly reminding juries of it in the course of our duties when presiding over criminal trials. As is apparent from our reasons, the reference to the plaintiff declining to make a statement appears only in the context of a recitation of the statements made to Constable Vincent either at the scene of the accident or later. The defendant had made a statement at the scene of the accident and that is noted in para 8. Constable Vincent also interviewed a passenger, Mr Micu. That interview occurred on 28 September 1993 and is mentioned in para 9 of the reasons. The error in referring to the time when the plaintiff declined to answer questions was unfortunate. It might have been better had we not referred to the fact that she declined to make a statement. But neither matter is of any consequence.

(6) Mr Wells QC submitted that none of the statements made to Constable Vincent were admissible. He referred to Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 per Gibbs J at 153 and submitted that Constable Vincent's report of the accident and his notes of statements were not tendered for all purposes. Examination of the hearing before the magistrate belies that submission. Counsel for the defendant had issued a subpoena duces tecum to Constable Vincent who produced all his notebooks as well as statements and plans of the scene of the accident. Counsel for the defendant tendered those documents, including the statements of witnesses and the statement of the defendant. There was no objection from counsel for the plaintiff. Nor did counsel for the plaintiff seek to limit the use which could be made of the exhibits. Later, counsel for the plaintiff cross-examined Mr Micu on his statement to Constable Vincent. It is quite apparent that this is one of the instances to which Hughes refers where the evidence was admitted for all purposes. The magistrate was therefore at liberty to make such use as he chose of the statements. As will be seen, the magistrate did not rely on any of the statements.

(7) Mr Wells was also critical of the summary in para 9 of the judgment of the statement made by Mr Micu to Constable Vincent. He submitted that we had made an inadmissible use of it. The submission is misconceived. As already noted, this forms part of a recitation of the statements made to the police. It was particularly necessary to note the statement which Mr Micu had made to the police. As we explain in para (8) below, it was necessary to refer to Mr Micu's statement because his evidence at the trial had been severely criticised by the judge. There is a real consistency between his evidence at the trial and the statement he made to the police when the facts were much fresher in his memory. Furthermore, we did not solely rely on his statement. In paras 12 and 13 we referred to the evidence given by Mr Micu at the trial.

(8) Mr Wells QC submitted that we had erred in stating in para 21 of our reasons that it was implicit in the findings of the magistrate that he had relied on the evidence of Mr Micu. It is necessary to quote the whole of para 21.

"If the respondent had been travelling at a speed of 60 km per hour, as her brother Russell McAdam had asserted in evidence, she would have had ample time in which to see the appellant's vehicle and stopped. If, however, she was travelling as fast as 70 to 80 km per hour, as stated by Mr Micu and Mr Dean after the accident, the respondent would have had substantially less time to stop, although an alert driver might have been able to do so. It is implicit in the findings of the magistrate that he has accepted the evidence of Mr Micu that the respondent was driving at least as fast as 70 km per hour."

Mr Wells first contended that para 21 does not correctly summarise Mr Micu's evidence. However, that submission is belied by the following extract from Mr Micu's evidence. It is convenient to quote a lengthy extract as it will be necessary to refer to it again later.

"Q. Your estimates of speed at the railway crossing on Bagsters Road was what.

A. Probably around 65 to 70 kilometres an hour maximum.

A. At the time I didn't think at that time nothing felt wrong when we went around the round about, until we went across the railway lines, that's sort of the speed we were doing, the car felt very uneasy over the railway line, the car felt very loose, you might want to use that word, we then went, we weren't on the left-hand side of the road we were more or less in the middle of two lanes more or less in the middle of two lanes, I can remember at that point going around the railway crossing straight after we crossed it seeing the truck at that point, after that point we had, everything happened very quickly, we had gone a sharp, there's a bit of a dip on Bagsters Road, we proceeded down that dip, and as soon as we entered that dip I felt the car was out of control, the car wasn't heading in a straight line, whether that might be her knowledge of the road I'm not sure but I wasn't heading in a straight line we were actually heading for a stobie pole on the left-hand side. I'm not sure of the name of street.

A. When you are just over the railway crossing there is a dip, there is, on the left-hand side there is a street and there is a stobie pole on the left-hand side."

It is clear from the above that Mr Micu had said that the plaintiff was driving as fast as 70 kph after she had negotiated the railway crossing.

Mr Wells also submitted that the magistrate had expressly disclaimed any reliance on evidence of speed of the vehicle being driven by the plaintiff. The magistrate gave his reasons ex tempore. It is apparent from his reasons that, after reviewing the evidence given by the witnesses called by the plaintiff, he did not make any express finding as to the speed at which she was driving. He did, however, ask why it was that, if she was driving at 50-60 kph, the range of speeds given in evidence-in-chief by her brother and a passenger called Mr Jefferey Dean, she did not stop or slow or take other action to avoid colliding with the defendant's truck. Shortly after, the magistrate described how the plaintiff's car had "impaled itself" underneath the defendant's truck "so that it had to be cut away to remove the injured plaintiff". He called it "an incredible impact". The magistrate then reviewed the evidence of the defendant and Mr Micu. He noted that Mr Micu had said that the plaintiff had accelerated over the railway line to about 50-70 kph. He said that he did not think it necessary to refer to the statements made to Constable Vincent and continued:

"Now I appreciate I have not referred to such things as the police statements, the words used by the truck driver Mr Robertson, the words used by the other witnesses. I really do not think any of that is necessary. The bottom line of this matter is simply this, and whilst I have already in part said it, I think it is important that I restate it, the plaintiff was driving a vehicle over the railway lines on Bagsters Road a distance of 71 or so metres from the entrance to driveway number 70 Bagsters Road. If the plaintiff was travelling at the prescribed speed limit for that area of 60 kilometres an hour, and saw the defendant's vehicle as it entered the road, and she would do that if she was paying attention, then she could stop her vehicle within 38 metres or about half the distance between the railway lines and the driveway to number 70 Bagsters Road. The closer she approached 70 Bagsters Road, obviously if she had not seen the truck the less time she had to react to apply her brakes or take evasive action. What is agreed and what is known is that she at no time ever applied the brakes. She simply mounted the median strip, crashed through the sign and cannoned into the truck at a substantial speed. Why did she do that. The defendant says the answer is very simple. She is a totally inexperienced driver for she had been driving on P's for just a few weeks. She was not paying attention, she panicked, it is just simply an uncomplicated rear end collision and whilst the court, and no doubt even the defendant, has the utmost sympathy for this young lass for suffering horrendous injuries that she did suffer, the sole responsibility for the collision was hers. She was not looking ahead. She was driving at a speed that simply was not safe. She failed to stop or slow her vehicle. If the view ahead was hindered she really cannot have her cake and eat it whether it was hindered or it was not. She did not take proper or any evasive action, she did not apply the brakes, she did not sound the warning device and she panicked."

Later, the magistrate added that "the plaintiff's speed must have been fast for him [the defendant] to travel that relatively short distance and for her [the plaintiff] to travel that substantially greater distance and hit with such force to the rear end".

It will be noticed that the magistrate says in his reasons that the plaintiff "cannoned into the truck at a substantial speed" and, a little later, "she was driving at a speed that simply was not safe". Later, he also describes the speed of her vehicle as being "fast". Having already referred to his calculation that indicated that she could have stopped before the collision had she been driving at 60 kph, it is implicit in the magistrate's reasoning that he believed that she was driving faster than 60 kph. His references to her substantial speed and an unsafe speed and a fast speed imply that he was having regard to, if not relying on, Mr Micu's evidence.

To support his argument, Mr Wells QC relied on the passage at the beginning of the magistrate's reasons quoted above where he disclaimed any reliance on the statements made to the police. In para 17 of our reasons, a paragraph which summarises the findings made by the magistrate, we said:

"It is implicit in his findings that he accepted the evidence of Mr Micu as to speed of the car in preference to that of the other two passengers. Although Mr Micu was of a similar age to the other occupants, he had the advantage of having given a statement closer to the actual events."

For the reasons just given, we were justified in stating that it was implicit in the magistrate's findings that he accepted the evidence of Mr Micu as to speed in preference to the other two passengers, Russell McAdam and Jefferey Dean. The reason why we added the last sentence was not to suggest that the magistrate had relied on the statements made to the police. Instead, our intention was simply to note that Mr Micu's evidence was consistent with the statement he had made to Constable Vincent in September 1993. It was necessary to do so because the judge whose decision we had overruled had been very critical of Mr Micu's evidence, a fact we expressly noted in para 22 of our reasons. This attack on our reasoning must therefore fail.

(9) Mr Wells QC was critical of one sentence in para 22 of our reasons. We have emphasised the sentence which appears in the following extract from para 22. This is the paragraph in which we noted the judge's criticism of Mr Micu's evidence.

"In conducting that review, the judge has criticised and ultimately decided not to accept the evidence of Mr Micu. As will have been noticed from the review of the evidence earlier in these reasons, Mr Micu's evidence was very damaging to the respondent's case. He was an independent witness. The effect of his evidence was that she was driving too fast and lost control of the motor car after crossing the railway line. The judge's criticism was based on two grounds. The first was that the estimates given at the time of the accident to the police were difficult to reconcile with his evidence. We do not think that this is a fair criticism. Although Mr Micu reduced his estimate when giving evidence, the effect of his evidence was the same as his statement to the police, namely, that the respondent was driving too fast."

The extract quoted above from Mr Micu's evidence more than adequately justifies our summary of it. Mr Wells then said that the magistrate did not rely on that evidence. The extract above from the magistrate's reasons which summarises Mr Micu's evidence refers to that part of his evidence where he said that the plaintiff lost control. The magistrate's summary was, "he said he felt the car was out of control". However, while the magistrate was very critical of the plaintiff's driving, he did not say she lost control. Nor did we. In para 22, we are doing no more than reciting the effect of Mr Micu's evidence. The very last sentence in para 22 concludes with a summary of the effect of his evidence. It is apparent from that passage and from the rest of our reasons that we did not conclude either that the plaintiff had lost control of her vehicle or that the magistrate had found that the plaintiff had lost control of her vehicle.

(10) The next criticism concerned para 13 of the reasons. In paras 12 and 13 we had summarised the evidence of Mr Micu. In para 13 we said:

"He said he first saw the truck after they got over the railway line. He described the truck's position as being a fraction off straight. He denied it was at a 45 degree angle and said;

'No, it wasn't that much of an angle I remember seeing the side of the truck always seeing the tail lights. ... It was very, very close to being vertical but ... still ... at that fraction of two or three seconds away from being straight.'

Mr Wells QC submits that it is an inaccurate summary of his evidence as to the position of the truck. Mr Micu was called by the defendant. His evidence-in-chief was that, when he first saw the truck it was already on the road. He said, "it was a fraction off straight". Later, he marked Exhibit D11 with the position of the truck. The plan shows a vehicle at an angle of about 45 degrees from the position of a vehicle driving south along Bagster Road. Immediately before marking Exhibit D11, Mr Micu described the position of the truck in these words:

"Yes I would have to say the truck wasn't straight but it was a fraction off may be a second or two off being straight so I would have to say, it was probably in that area."

Mr Micu was asked further questions on this topic in cross-examination. He was asked:

"Q. When you said to the policeman 'as we just cleared the corner I saw the tray top truck with the car on top I saw the truck travelling on Bagsters Road. It was on a diagonal angle to the road'.

A. Yes I suppose I should have been more specific to the angle but it was on an angle at the time when I first saw it, I'm not sure how many metres on Langford Terrace towards where the truck was at the time.

Q. Could the truck have been at an angle of 45 degrees.

A. No it wasn't that much of an angle I remember seeing the side of the truck always seeing the tail lights.

Q. But when you gave the statement to the policeman, you didn't mention to him that you saw the tail lights in your statement.

(We note in passing that the first question is one occasion when the plaintiff's counsel made express reference to Mr Micu's statement to the police. We have marked with single quotation marks the words taken from his statement to Constable Vincent. He again referred to the statement in the very next question which follows the passage quoted above. The plaintiff's counsel was also junior counsel to Mr Wells on this application and on the hearing of the appeal in 1998.) Counsel for the plaintiff pressed the issue. It is unnecessary to repeat the whole of the cross-examination. Mr Micu was asked:

"Q. Let me get it clear then, as you crossed the railway line you saw the truck is that right.

Q. And at that second you saw the truck how was it stationed on the road.

A. It was very, very close to being vertical but still at a still at that fraction of two or three seconds away from being straight, so."

The extract quoted in para 13 is obviously an abridged summary of Mr Micu's evidence in cross-examination. A few more questions were asked on this topic before counsel for the plaintiff asked a final question. Before Mr Micu could complete his answer the magistrate intervened. The transcript reads:

"Q. You're probably not going to argue with 45 or thereabouts.

HIS HONOUR: That's okay, that's the next step. Leave it there, on seeing what the witness has done with my two biros and whilst this may well be uncertain I can do no more with a vision created with an inadequate object, I am satisfied that the angle he has described as the truck left the driveway was near enough to 45 degrees without creating an argument about it."

No further questions were asked on this topic. It is apparent that Mr Micu was giving a demonstration, a fact confirmed by the magistrate's reasons:

"As for the truck, he said in cross-examination that he had seen the truck as they were crossing the railway line but he said he didn't take any notice of it. His concern was where they were going as there was a stobie pole that he was concerned about. When he first saw the truck it was on a 45 degree angle. I had a demonstration done at the witness box. I am satisfied that was about 45 degrees."

Our summary of Mr Micu's evidence is correct. It is apparent that he was not prepared to accede to suggestions that the truck was at an angle of 45 degrees. However, the magistrate effectively closed off the issue stating that the demonstration satisfied him that the angle was 45 degrees. Mr Wells' criticism is therefore ill-founded. In any event, Mr Wells is creating a false issue because it is quite apparent from para 16 of our reasons that we did not misunderstand the position. That paragraph has already been quoted. It is a summary of the magistrate's reasons. We repeat the relevant sentence:

"He found that when it was first seen, the truck was at 45 degrees to the kerb so that both the illuminated signs and the rear lights would have been visible."

It is readily apparent that we were aware of the magistrate's findings. It is unnecessary to make any further answer to this criticism.

(11) The next criticism was directed at para 16 of our reasons and, in particular, to the sentence quoted in a previous paragraph. Mr Wells QC correctly pointed out that the magistrate did not find that the sign on the side of the truck was "illuminated". The word "illuminated" was wrongly used. The evidence was that the sign was a reflective sign. We did not intend to suggest that the sign was other than reflective. This is an inadvertent error, a conclusion confirmed by the fact that in para 14 we correctly describe the sign as "an RAA contact reflective sign" and in para 16, only three lines before, we use the expression "the illuminated signs" we had described the sign as "a reflective sign". It is readily apparent that we could only have been referring to the reflective sign. This is truly a slip of the pen or an inadvertent error of no consequence. The conclusion that the error is of no consequence is reinforced by the fact that we held, as did the magistrate, that the defendant's vehicle could have been seen from the railway line on this night.

(12) The next criticism concerned para 14 of the reasons which contain a summary of the defendant's evidence. Mr Wells QC complains of the last sentence which reads:

"He also told police after the accident that one of the male passengers had said words to the effect that 'She was driving like an idiot - it is all her fault'."

As Mr Wells pointed out, this allegation is hearsay and was not put to Mr Dean or Mr Micu. It was denied by Russell McAdam. The remarks complained of form part of a summary of the evidence. The passage is a quotation from the defendant's statement to the police and, with the benefit of hindsight, it would have been preferable to have omitted it. What is important is that it played no part in our reasoning as is amply demonstrated by an examination of the reasons as a whole.

(13) Mr Wells QC had another criticism of para 16 which is the recital of the magistrate's findings. We said:

"The magistrate found that the [plaintiff] had an unobstructed view along Bagster Road from at least the railway line; that it was 97 paces from the railway line to the point of impact; that it was a clear night and the bitumen road was dry. He also found that the [defendant's] vehicle was clearly visible."

(In this passage, for the sake of clarity, we have substituted "plaintiff" and "defendant" for "appellant" and "respondent".) The magistrate had found:

"What is undisputed as is indicated from D9, having regard to Exhibit D9 that being a plan drawn to scale by Coulter who is an investigator, is that from the railway line to the point of impact, and that is a plan which is not to scale, there is a distance of 82.1 metres. I relate that to Exhibit D4 the plan drawn by First Class Constable Vincent and adding up the various distances he records that distance, that is to say the distance from the railway line to the point of impact as being 97 paces."

"To confirm that, when one looks at photograph D1(b) and whilst clearly that is taken from the western lane looking north, if one shifts to the eastern lane and continues to look north, as is indicated in photographs P1(a) and (b), one can clearly see that from that position one has a pretty clear view, dare I say, an uninterrupted view from the entrance to number 70 Bagsters Road north to the railway line and indeed past it."

These two passages show that our summary entirely accords with the magistrate's findings.

Mr Wells QC suggested that the passage misrepresented the magistrate's reasons. He particularly stressed that the magistrate's conclusion was based on photographs taken in daylight confirmed by a view made in daylight. The accident occurred at about 7.25 o'clock at night. The conditions would, he said, be different at night. But the fact remains that the plaintiff had an unobstructed view on that night. The magistrate referred to the fact that the collision occurred at night when, to use his words, "different considerations would apply" but it did not, in any respect, qualify his finding as to the uninterrupted view which was available to the plaintiff.

Of more significance is Mr Wells' next criticism which concerns para 20, a paragraph which deals with a complaint made at the hearing of the appeal about the magistrate's use of a table of stopping distances. Paragraph 20 reads:

"It is apparent from the reasons of the magistrate that he has not used the tables in any absolute sense, for example, to fix precisely where the respondent's vehicle was when she first saw the appellant. Instead, he has used the table for the purpose of examining the evidence and determining which account, on the balance of probabilities, is the more accurate. This limited use of the diagram was legitimate. It provided a kind of yardstick against which to assess the evidence. It enabled the magistrate to conclude that, had the respondent been travelling at a speed of 60 km per hour and had she been keeping a proper lookout, she would have seen the appellant's vehicle and stopped or taken other evasive action. That conclusion was clearly open to the magistrate since the respondent could have seen the appellant's vehicle at least 97 metres away when crossing the railway line."

As Mr Wells points out, the reference to 97 metres is wrong. It was not 97 metres from the railway line to the point of impact but 82.1 metres, some 15 metres less. As will already have been noticed, we correctly stated the distance as 97 paces in para 16 of our reasons quoted in the early part of para (13) above. The reference to 97 metres has obviously resulted from a mistranscription of 97 paces stated in para 16. We apologise for the error but it is an error of no consequence. According to the tables on which the magistrate relied, if the plaintiff had been travelling at 60 kph she would easily have been able to stop within the distance of 82.1 metres.

Mr Wells QC contended that the distance was not 82.1 metres but 68 metres. The difference between these two distances depends upon the reference points between which the distance is measured. If the measurements are from the southern track of the railway line to the point of impact, the distance is 82.1 metres. If the measurement is from the southern side of the railway line to a stobie pole just a little north of the defendant's driveway, the distance is 68 metres. The distance from the stobie pole to the defendant's driveway is about 1 metre. Thus, the distance from the southern track of the railway line to the defendant's driveway is about 69 metres. Whether the distance be 68 metres or 82.1 metres, the fact remains that if the plaintiff had been travelling at 60 kph as was asserted by her witnesses, she had quite a sufficient distance in which to stop or slow and avoid a collision. Quite clearly, therefore, the misstatement of the distance in para 20 of our reasons is of no consequence. The point is reinforced by the fact that a driver crossing the railway line would have been able to see the defendant's vehicle while crossing the line, which only adds to the distance in which action could be taken to avoid a collision.

(14) The last of the criticisms concerning the facts of this collision raises the only matter of substance. It concerns para 31 of the reasons. It is necessary to repeat the whole paragraph.

"Counsel for the respondent placed a great deal of emphasis upon the obvious duty of care which had to be exercised by the appellant when driving from his private land on to this relatively busy road. He had a duty imposed by ss62 and 66 of the Road Traffic Act 1961 to give way to vehicles travelling along Bagster Road. That duty has been reinforced in Butcher v Saunders (unreported, 24 July 1997 Judgment No S6252.2). That duty of care was all the greater because the appellant was reversing a truck and at night. But the appellant was driving slowly and keeping a careful lookout. His vehicle was moving very much more slowly than the respondent's vehicle. When he began his manoeuvre there was no vehicle between his vehicle and the railway line. It was not the kind of manoeuvre which could be executed in a second or two. He was entitled to assume that other road users approaching him would exercise reasonable care and stop and allow him to complete his manoeuvre. It is a commonplace that other drivers will have to stop or slow to allow drivers of large vehicles to complete certain kinds of difficult manoeuvres. Those manoeuvres include reversing from private land on to a public road. We do not think that there is any cause to hold that the appellant was negligent."

It will have been noticed that we say twice that the defendant was reversing from the land. He was not. He was driving forward. That was common ground. The reasons in para 31 suggest, on their face, a different kind of collision to that which occurred. However, this was an inadvertent error which does not affect our ultimate conclusion. The fact that the error is inadvertent is manifestly clear from paras 6, 7, 8 and 14 of our reasons which state a number of facts consistent only with the defendant driving forward out of his driveway, in particular, the references to the directions in which the defendant looked to see if the way was clear when driving out of his driveway, his statement in para 8 that he "pulled forward", and the description of the manoeuvre undertaken by the defendant's truck at the end of para 6. It was also readily apparent from the magistrate's reasons that the defendant was driving forward. We are unable to explain how the error occurred.

By reason of s 62 and s 66 of the Road Traffic Act 1961, the defendant had a duty of care to others who might be using Bagster Road when driving out of his land. That duty existed whether he was driving forward or reversing. It is arguable that a driver reversing from private land on to a public road has a higher standard of care to discharge than the person driving forward from that land. To the extent, therefore, that the remarks in para 31 are based on the fact that the defendant was reversing from his land, the error does not assist the plaintiff. But we do not rest our decision on that.

What the submissions of Mr Wells fail to address is the fact that we had upheld the magistrate's decision before the reasoning in para 31. That already is apparent from the last sentence in para 30. The reasons in para 31 were included to address one particular submission advanced on behalf of the plaintiff. The reasoning applies with equal force to a driver driving forwards out of private land. We spell out that conclusion in the next two paragraphs of these reasons.

The defendant had a duty of care to give way to vehicles travelling along Bagster Road. The standard of care to be exercised was increased because it was night. In one sense, that standard of care was easier to discharge because the defendant would be able to see headlights of approaching vehicles. The headlights on the plaintiff's vehicle were on. The evidence shows that the defendant was driving slowly and keeping a careful lookout. It was a clear night. It is implicit in the magistrate's reasons that he accepted the defendant's account of how the accident occurred. He does not in any respect question that account. By contrast, he had a number of questions concerning the plaintiff's account and the account given by her witnesses of her driving. According to the defendant, he drove forward on his land and stopped before the kerbing. He allowed two vehicles to pass. He could see as far as the railway line. He could not see any vehicle approach from that direction. He pulled out slowly on to the road. He was turning left to drive south along Bagster Road and swung out wide in the course of making his left hand turn. As he was beginning to straighten up, he saw the plaintiff's vehicle in his rear view mirror. He tried to accelerate out of the way but the plaintiff hit the rear of his truck. The magistrate did not criticise the defendant's manner of driving but was very critical of the plaintiff's driving.

The question which the magistrate had to determine was whether the plaintiff had proved that the defendant had driven negligently. The magistrate concluded, "the plaintiff has not proved on the balance of probabilities that the defendant is liable for this collision". He then held that the plaintiff's claim must fail. In our reasons, we upheld that decision.

Mr Wells QC contended that we had overlooked the principle that in order to restore the decision of the magistrate it was not enough to hold that the judge had erred but we had to conclude that the magistrate gave the correct judgment: State Rail Authority v Earthline Construction Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306. He submitted that we had merely found that the findings of the magistrate were reasonably open on the evidence, which was to apply Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, a decision criticised in Earthline at paras 82 - 83]. Mr Wells pointed to the fact that in para 18, when summarising the findings of the magistrate, we had said, "those findings were all open on the evidence". But that is one instance only in the reasons for judgment which, on several occasions and on several grounds, criticised the reasons of the judge who had set aside the magistrate's decision. For example, para 30 concludes:

"That was the magistrate's approach and there is no basis to interfere with it."

Mr Wells' criticism is based on one sentence in the whole of the reasons and his arguments focussed on words rather than the substance of the reasons. A fair and objective reading of the reasons as a whole shows that we concluded that the magistrate was correct. Furthermore, Mr Wells' submission failed to address the fact that we were hearing an appeal from Olsson J. The essential question was whether the decision of the magistrate or Olsson J should be upheld.

Mr Wells QC also submitted that the errors noted above showed that the court had decided the appeal on the basis of a misapprehension of the basic facts relating to this collision and, in particular, of the manoeuvre made by the defendant's truck, of distances, of lighting, and of speed. As these reasons show, there is no misapprehension in respect of speed. The question of lighting was inconsequential. The one error as to distance, that is to say, the reference to 97 metres, does not avail the plaintiff. Whatever misapprehension concerned the truck's manoeuvre did not, on examination, assist the plaintiff.

Mr Wells QC submitted that the magistrate's reasons had failed to apply the reasoning of the High Court in March v E & M Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 and that, in failing to determine whether the magistrate had given the correct judgment, we had perpetuated the error. To use Mr Wells' words, the magistrate's reasons reveal a fundamental heresy, a heresy which had been exposed by the High Court in March v E & M Stramare Pty Ltd, and the Full Court had restored that heresy in its judgment. The question whether the magistrate had failed to apply the reasoning in March v E & M Stramare Pty Ltd had been agitated before us on appeal and was dealt with in para 30 of our reasons. Mr Wells' argument, at times, bordered on re-argument of the appeal. But it is unnecessary and inappropriate to deal with the argument on that ground. Instead, we refer to para 30 of our reasons:

"The judge also criticised the magistrate's conclusion that the respondent was solely responsible for this collision. It was submitted that the magistrate had applied the wrong test of causation and had used the last opportunity rule instead of the common sense approach as outlined in decisions such as March v E & M Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 and Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. We do not agree. The effect of the magistrate's findings was that the respondent had had sufficient time in which to see the appellant's vehicle and stop or take other evasive action. Common sense and one's ordinary experience indicates that there are occasions when one driver can be solely responsible for a collision. A common sense view of what occurred was that this was one of those occasions when a driver, by the exercise of ordinary care in keeping a proper lookout and driving at a safe speed, could have avoided a collision. That was the magistrate's approach and there is no basis to interfere with it."

It is apparent from those reasons that we had regard to the decision in March v E & M Stramare. Given the circumstances of this application, it is appropriate to spell out the reasons for our conclusion in more detail.

It is implicit in the magistrate's reasons that he has accepted the evidence of the defendant. If the magistrate had not accepted the defendant's evidence, he would have had to conclude that the plaintiff's vehicle was in a position where the defendant should have seen it, that he failed to see it, and that he negligently drove on to the road into the path of her vehicle. The magistrate would then have found the defendant guilty of negligence. The defendant's evidence was that he had looked to his right and had not seen the headlights of the plaintiff's vehicle and that they could not be seen. The fact that Bagster Road is at an angle would prevent him from seeing the lights of the plaintiff's vehicle if it had not reached the railway crossing at the time when the defendant drove out on to Bagster Road. The defendant then drove slowly out on to Bagster Road. We have already referred to his reasons for driving slowly. They are valid. Of necessity, he had to make a wide turn with his truck and, as the manoeuvre had to be undertaken slowly, it would take a little time for him to get to the left hand side of the road.

The evidence of all of the witnesses who were passengers in the plaintiff's vehicle is consistent with, if it does not confirm, the defendant's version of what occurred. All of those witnesses saw the truck soon after the car driven by the plaintiff had crossed the railway line. As the magistrate found, it was then at an angle of about 45 degrees. By then the truck had completed at least half the intended manoeuvre. It was then facing in an almost southerly direction along Bagster Road. As the manoeuvre the defendant was executing was relatively slow, the time taken to complete the manoeuvre would allow a vehicle driving along Bagster Road to cross the railway line and approach his truck. That evidence is quite consistent with the fact that the defendant had not seen a car approaching on his right when he began to drive out on to Bagster Road. Furthermore, there is no suggestion in any of the evidence called by the plaintiff that the defendant had driven his truck into the path of the vehicle she was driving. Had he done so, it is not likely that the truck would have completed so much of its left hand turn as it had before this collision.

This is not a case where a person, who is driving out of private land on to a public road, sees another vehicle approaching and misjudges the speed at which the other vehicle is travelling so that a collision results. In such a case, the person driving on to the public road will have to bear some responsibility for the collision. By contrast, the magistrate has impliedly found that the defendant could not have seen the plaintiff's vehicle when he began to drive on to Bagster Road.

The defendant's duty to give way to other vehicles using Bagster Road does not prohibit him from driving his truck on to Bagster Road. He may drive out of his land and on to the road provided he exercises all reasonable care. The defendant was entitled to drive out on to Bagster Road expecting that other drivers would be driving at a safe speed and maintaining a proper look out. If that is not so, then the defendant is almost placed in a position of an insurer and will effectively be unable to drive the truck out on to Bagster Road unless he arranges for someone to stop traffic in both directions. That is an unreasonable position.

Unlike March v E & M Stramare Pty Ltd, this was a case of a vehicle driving slowly in the course of executing a manoeuvre which, of necessity, could not be completed quickly. All drivers have a duty to keep a proper look out and to drive at a safe speed. Ordinary experience instructs that there will be not infrequent occasions when a driver will approach a slow moving vehicle. On those occasions, the approaching driver will either stop or slow his or her vehicle or take other evasive action.

The magistrate's reasons show that he was aware that his duty was to determine whether the defendant had driven negligently and in breach of his duty of care to the plaintiff. He decided that the plaintiff had not proved her case. His reasons show that he had concluded that the collision was caused by the negligence of the plaintiff in driving too fast, in failing to keep a proper look out, and in failing to stop or slow her vehicle. As he said, "the sole responsibility for the collision was hers". We reject Mr Wells' submission that the magistrate had asked himself the wrong question. The magistrate reached his conclusion after analysing the objective facts for the purpose of resolving the conflicting accounts as to the manner in which the accident had occurred. As we said in our reasons, it is implicit in the magistrate's reasons that he has accepted the evidence of the defendant's witness, Micu, that the plaintiff was driving too fast. It must be remembered that these reasons were given ex tempore. While the magistrate might have expressed his reasons a little more logically, his intent is apparent. He has not perpetrated any heresy. His decision was correct. It is appropriate to add that, once the decision is reached that the defendant had not driven negligently, the reasoning in March v E & M Stramare Pty Ltd, has little, if any, application.

For these reasons, there is no misapprehension of law or error of law. The review of the misstatements of fact shows that, except for the error discussed in para (14), each misstatement is of no material consequence. On examination, the error discussed in para (14) was also of no consequence to our overall conclusion. Some of the misstatements are almost a slip of the pen. In other cases, the position is correctly stated elsewhere in our reasons. Others are inadvertent errors. In many of the criticisms made of our reasons there has regrettably been a preoccupation with a single word or phrase, rather than with the substance of the reasons as a whole or an examination of the question whether the misstatement has any material consequence. In some cases, a word or phrase has not been considered in its context. A moment's reflection on the particular word or phrase or a consideration of that word or phrase in its context would have readily disclosed the true intent of the reasons. This does not, of course, excuse the errors or misstatements. But it does suggest that the application is made on slender grounds. There are one or two instances where the criticism was entirely unfounded.

What is of the greatest significance is that it is quite apparent from an examination of the whole of our reasons delivered on 26 November 1998 that these errors did not in any respect affect our conclusion. In other words, it is possible to deal with this application on the objective fact of those reasons. We realise that regard must be had not only to each individual error but also to the cumulative effect of the errors when viewed as a whole. A fair and objective reading of the whole of our reasons for judgment shows that, however regarded, these errors are of no consequence and did not affect our conclusion.

If we had made any errors of law or fact which would have affected the outcome of the appeal, we would have been willing to make whatever correction was necessary. Nothing has been adduced which requires any correction of the orders made on 26 November 1998.

One final criticism made by the plaintiff concerned para 33 which dealt with orders made by the judge as to costs in the Magistrates Court. We said:

"There is a further appeal against an order made by the judge as to costs in the Magistrates Court. The judge held that a special order as to those costs should be made in favour of the respondent. He held that the costs should be awarded in accordance with the provisions of Rule 53 of the Magistrates Courts Rules and should be doubled because an offer had been made at the trial. He also ordered that the costs of the trial should be computed on the footing that this was a complex action: see Rule 106(7) of the Magistrates Court Rules."

We have emphasised the passage about which the plaintiff complains. The complaint is contained in the outline of submissions but was not developed in oral argument. As the submission was not withdrawn we must deal with it. It was submitted that the emphasised sentence refers to the magistrate. Plainly, it does not, as counsel for the plaintiff would have known. We are referring to the judge in the court below who has allowed the appeal from the decision of the magistrate. That is apparent from the context in which the sentence appears. It is also confirmed by the fact that the magistrate made no special order as to costs but simply made the usual order that costs follow the event. The plaintiff had sought a special order as to costs on the appeal before Olsson J and that order is to be found in para 1 of the order made on 16 February 1998. Reference to the transcript of proceedings before the judge on 16 February 1998 confirms that. Our reasons on the question of costs are entirely accurate. Nothing more need be said in response to this misplaced criticism.

For all of these reasons, we do not think there is any basis for reopening the orders made on 26 November 1998. The plaintiff's application is therefore dismissed.

Supreme Court Act 1935

Road Traffic Act 1961

Supreme Court Act 1935

Road Traffic Act 1961

Judgment No. [2001] SASC 206

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