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Date: 10 December 2004

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal is allowed for the purpose of reducing the amount of the judgment from $232,452.30 to $116,226.15;

2. the respondent to pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE ) No. ACTCA 26-2004

) No. SC 624 of 2002

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JAMES BOYD NORMAN

Appellant

AND: SANDRA DARLENE SPIERS

Respondent

Judges: Crispin P, Connolly and Selway JJ

Date: 10 December 2004

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The appellant appeals from the decision of the primary Judge given on 28 June 2004: Spiers v Norman [2004] ACTSC 55. The primary Judge found that the appellant was wholly liable for a motor vehicle collision on 24 December 2001 between a police vehicle driven by the appellant and a private vehicle driven by the respondent. The primary Judge ordered that judgment be entered for the respondent in the sum of $232,452.30. For the reasons given below we would allow the appeal and order that judgment be entered for the respondent for the sum of $116, 226.15.

2. The motor vehicle collision occurred on a day when there were extensive bushfires in Canberra. The appellant had been involved in police duties relating to the control and safety of persons in the vicinity of the fire front, including the evacuation of persons from their homes. The vehicle driven by the appellant needed to be refuelled and for that purpose the appellant was travelling at speed in an easterly direction on Adelaide Avenue in Canberra. There are four easterly lanes on Adelaide Avenue. The fourth lane nearest the median strip is a “bus lane” intended for the use of buses and taxis. The police vehicle was proceeding in the bus lane. The siren and lights on the police vehicle were actuated.

3. The respondent was also proceeding in an easterly direction along Adelaide Avenue. Her vehicle was in the third of the easterly lanes closest to the bus lane. When her vehicle was close to a cross over on the median strip the respondent drove into the bus lane apparently intending to drive over the cross over. The cross over existed seemingly for the purpose of providing access to the Prime Minister’s Lodge from the eastern lanes of Adelaide Avenue. In changing lanes and proceeding to the cross over, the respondent’s vehicle crossed into the path of the appellant’s vehicle and the two vehicles collided.

4. The appellant’s evidence was that he was travelling at a speed of between 100-110 kilometres per hour before he saw the respondent’s vehicle move into the lane in which he was travelling. His evidence was that he saw the respondent enter into the fourth lane in which his vehicle was travelling when the appellant’s vehicle was 50-100 metres from the point of impact. His evidence was that he did not see any indicator light indicating the respondent’s intention to change direction prior to her doing so. His evidence was that he would have observed such an indicator light if it had been activated.

5. There was some evidence that the point at which the respondent’s vehicle turned into the fourth lane was where a traffic sign containing the words “Taxi Bus Only” was erected on the median strip. There was no evidence as to the distance of that sign from the point of the collision. However, photographs showing the sign were put into evidence. It is apparent that the sign was some distance from the point of collision.

6. The appellant’s evidence was that he “immediately and heavily” commenced to brake when he saw the respondent’s vehicle move into the fourth lane. He also veered to the right such that the right hand side wheels of the police vehicle were on the grass area of the median strip, rather than on the roadway.

7. The appellant’s evidence as to these matters was largely confirmed by the evidence of Constable Clark who was a passenger in the police vehicle. It was also consistent with the evidence of a number of “independent witnesses” who had also been travelling in an easterly direction along Adelaide Avenue generally in the third of the easterly lanes. Some of that evidence suggested that the police vehicle may have been travelling at a lower speed than that estimated by the appellant, but that can probably be explained by the fact that they may have only closely observed the police vehicle after it commenced to brake.

8. The vehicles collided as the respondent’s vehicle was turning right into the crossover. The left front of the police vehicle collided with the rear right of the respondent’s vehicle. The force of the vehicle was sufficient to cause the respondent’s vehicle to roll over. The respondent suffered severe injuries. The appellant’s vehicle came to a stop some 30 metres from the point of collision.

9. The respondent had no recollection of the accident or the events leading up to it.

10. The primary Judge concluded that the appellant had not been travelling at the speed that the appellant had estimated, but that he had been travelling between 135-140 kilometres per hour. The primary Judge reached this conclusion by relying on the average stopping distances set out in Leslie & Britts Motor Vehicle Law in NSW (4th ed) at 11-626. The primary Judge dealt with the matter in the following way: It was not disputed that, travelling at 100 kph, the police vehicle should have been able to stop in a distance 59.2 metres (Leslie, P.A. and Britts, M.M.G., Leslie and Britts Motor Vehicle Law in NSW, 4th ed., Table 4, p. 11-626). At 110 kph that distance would be 78.1 metres. However, that is an average result that should be bettered by a trained and alert police driver. …That picture [of the police vehicle taking 90 to 120 metres to stop] does not sit consistently with the estimated speed of the police vehicle before braking at 100 – 110 kph. Even without the sudden deceleration constituted by the collision itself, a stopping distance of between 90 and 120 metres, as the defendant and Constable Clark themselves concede, suggests a commencing speed between 125 and 140 kph. (Leslie, P.A. and Britts, M.M.G., Leslie and Britts Motor Vehicle Law in NSW, 4th ed., Table 3, p 11-625). Indeed, had the commencing speed been 100 to 110 kph, the stopping distance could not have exceeded 72.5 metres, the collision thus should either not have happened or been very slight. It is, therefore, more probable than not that, notwithstanding that the defendant and Constable Clark were honestly attempting to give their best recollection, neither really observed or appreciated the police vehicle’s speed as it topped the crest west of the Lodge. It is my opinion that the defendant, being understandably anxious to resume his duties, not expecting any other traffic in the bus/taxi lane, accelerated up to a speed that is consistent with the stopping distance actually achieved rather than the lower speed he recollected from his last observation of his speedometer.

11. There are several problems with this analysis. First, it is based upon the stopping distances set out in Leslie & Britts which are no more than averages. The tables themselves make it plain that the figures may not be applicable in a particular instance. In this case there was no apparent allowance by the primary Judge for any delay by the appellant in applying his brakes. Nor was there any allowance for the effect of the appellant’s vehicle having partly left the roadway (a matter which the primary Judge properly excused on the basis that it occurred on the ‘agony of the moment’).

12. In our view it is clear that the tables could only be relied upon if there was expert evidence explaining how the tables could be applied on the facts of this case. There was no such evidence before the primary Judge. It is clear from the transcript that the appellant objected to the use of the tables in the manner in which they were used. In the absence of such expert evidence or (perhaps) the agreement of the parties, the primary Judge could not rely upon the tables as evidence of stopping distances. The respondent conceded in argument before us that the tables could not be used in the manner in which the primary Judge did use them.

13. The consequence is that the conclusion by the primary Judge that the appellant’s vehicle was travelling at 135-140 kilometres per hour cannot be sustained. There was no evidence to support that finding. There was no evidence to support any finding that the police vehicle was doing more than 110 kilometres per hour.

14. This does not mean that the matter should be remitted for further hearing. Neither party asked the Court to do that. Both parties requested that this Court make its own assessment of whether the parties had been negligent and, if so, to what extent, based upon the evidence that was before the primary Judge. There are obvious dangers in doing so: see Suvaal v Cessnock City Council (2003) 200 ALR 1 at 18-20. However, in this case there were no credibility findings against any particular witnesses. In this case the evidence is not significantly in dispute. The question that is in dispute is what inferences can be drawn from that evidence. This Court is in as good a position to draw those inferences as was the primary Judge: see Warren v Coombes (1979) 142 CLR 531.

15. What evidence there was, was that the appellant’s vehicle was travelling at between 100-110 kilometres per hour immediately before the collision. Constable Clark gave evidence that the traffic was heavy and that it was travelling slowly. The evidence of the speed of the traffic in the other three lanes of Adelaide Avenue was that it was travelling at between 30 and 40 kilometres per hour. It was clearly less than the 80 kilometres per hour that is permitted at the place where the accident occurred. This reflects what was the practical reality at the time the collision occurred. The bushfire had caused considerable disruption to traffic. Some distance prior to the point of collision, the traffic on the western lanes of Adelaide Avenue was being diverted to the eastern lanes by reason of the fire. The police officers gave evidence that at that place traffic was crossing the median lane and entering the bus lane.

16. It was not disputed before the primary Judge that the appellant was exempt from the ordinary statutory road rules pursuant to Regulation 69 of the Road Transport (Safety and Traffic Management) Regulations 2000 (Regulation 69). That regulation relevantly provides that the usual statutory requirements in relation to speed limits, compliance with road signs and so on do not apply to a police driver if, in the circumstances, the driver is taking reasonable care and it is reasonable that the driver be exempt and, if the vehicle is moving, it is displaying a red or blue flashing light or sounding an alarm. The result of that exemption was that the appellant was not subject to prosecution for exceeding the speed limit or for driving in the bus lane. Of course, the exemption must be understood as an exemption from criminal liability. In particular, the reference in Regulation 69 to “reasonable care” must be understood in that context.

17. The appellant accepted that the exemption from the statutory road rules did not have the consequence that the appellant was necessarily exempted from liability for negligence. The appellant was correct to make that concession. It is well supported by authority: see, for example, South Ambulance Ambulance Transport Inc v Wahlheim (1948) 77 CLR 215 (Wahlheim); Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; Morgan v Pearson (1979) 22 SASR 5; Patterson v McGinlay (1991) 55 SASR 258, 266-267; Nelligan v Mickan (1998) 28 MVR 114 (Nelligan).

18. Nevertheless, the appellant submitted that his driving had not been negligent on this occasion. In this regard the issue is not whether the appellant owed a duty of care to the respondent and to other road users. Plainly he did. The question is whether that duty was breached. This involves consideration of the extent or nature of the duty owed.

19. It is clear on the authorities that Regulation 69 reflects the community expectation that the drivers of police vehicles may, in appropriate circumstances, take risks that others cannot. In our view it is wrong in principle to analyse the duty of care of a driver exempted under Regulation 69 in exactly the same way that the duty of care of an “ordinary” driver would be analysed: contrast Johnstone v Woolmer (1977) 16 ACTR 6; Schulz v Morrison (1984) 1 MVR 34. In relation to an exempt driver it is necessary to balance the risk involved in the method of driving against the end for which the exemption has been given: see Watt v Hertfordshire County Council [1954] 2 All ER 368 at 371; Blight v Warman & McAllan [1964] SASR 163 at 170.

20. On the other hand, the driver of an exempt vehicle cannot ignore the risk of the method of driving: see Wahlheim at 222. There will be some circumstances where the very danger that provides the basis for the exemption from the ordinary statutory rules, will also have the effect that driving at the ordinary speed limit is negligent: see, for example Nelligan where the driver of an emergency vehicle travelling at 60 kilometres per hour in an attempt to escape from a bushfire was found to be negligent in colliding with a stationary emergency vehicle.

21. The correct approach is to ask what a reasonable person in the position of the police officer would do, having regard to the information which the police officer either knew or ought to have known. The common law in this regard is now reflected in s 42 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). In considering the extent of the duty owed in these circumstances a reasonable person can be expected to make a reasonable assessment of the risks: see for example, the discussion by Higgins J in Winter v Cth (1992) 112 ACTR 10 at 27-28.

22. In this case the relevant circumstances of which the appellant was aware, or should have been aware included: (a) The appellant was proceeding along a major road in Canberra. The road consisted of two roadways each comprised of four lanes with a large median strip separating the roadways; (b) Although the appellant was not aware that there was a cross over in the median strip near the Prime Minister’s lodge, he should have been aware that such cross overs do exist in median strips; (c) Traffic was medium to heavy; (d) The circumstances were unusual in that there were major bushfires in Canberra not very far distant from the place where the appellant was driving. There was smoke in the air. Traffic was being directed away from areas in the vicinity of the fire; (e) Some drivers were driving badly and in breach of the traffic rules; (f) The traffic was proceeding at a speed less than the statutory speed limit, presumably by reason of some or all of the above factors; (g) The traffic was in the first, second and third lanes of the roadway. The fourth lane immediately adjacent to the median strip was a “bus” lane. Vehicles other than buses, taxis and exempt vehicles should not enter that lane; (h) The appellant was exempt from the statutory road rules. Moreover, other vehicles were required to give way to the appellant’s vehicle. The appellant was sounding the siren on the vehicle and had the emergency lights flashing; (i) The appellant was proceeding to refuel the police vehicle in order to return to duties associated with the protection of life and property and the maintenance or order arising from a bushfire in the suburbs of Canberra; (j) The appellant was travelling at a speed of between 100 to 110 kilometres per hour; (k) At that speed the appellant was unable to avoid a collision with the respondent when the respondent’s vehicle turned suddenly and without warning into the lane in which the appellant’s vehicle was travelling.

23. Taking all of these circumstances into account it is our view that the appellant was proceeding at a speed which was excessive in the circumstances. We do not go so far as to say that travelling at a speed of 110 kilometres per hour in heavy traffic in a built up area and on roads not designed for that speed will inevitably result in a finding that the driver of the exempt vehicle was travelling at a speed which was excessive in the circumstances. Plainly enough, however, a driver proceeding at that speed will have difficulty reacting to an emergency situation. At that speed the consequences of any collision are likely to be serious. In our view the circumstances obtaining at the time were not such that a reasonable person in the position of the appellant would have concluded that it was appropriate to travel at that speed. In consequence the appellant breached the duty of care he owed to the respondent.

24. The appellant complained that the primary Judge did not deal with the question whether any breach of duty by the appellant caused the injury suffered by the respondent. Whether or not this is a valid criticism of the primary Judge, the issue of causation is one that we have to consider afresh, given that we have found that the appellant was negligent based upon a different factual basis to that as found by the primary Judge.

25. The question before us is whether the breach of duty owed by the appellant to the respondent in travelling at 100-110 kilometres per hour was causative of the damage suffered by the respondent. The evidence was that the collision occurred some distance from the point at which the respondent changed lanes into the bus lane. The respondent travelled in the bus lane for that distance before she turned into the cross over. The respondent was obviously travelling at a much slower speed than the appellant’s vehicle and was probably slowing down to enter the cross over. The collision involved the relative extremities of each vehicle, even though the right side wheels of the appellant’s vehicle were on the median strip rather than the roadway. Plainly enough, the accident was almost avoided, even at the speed that the appellant was travelling. In the absence of any expert evidence as to the effect of speeds and distances it is necessary for the Court to rely upon common sense and inference in ascertaining whether breach of duty by the appellant in travelling at an excessive speed was causative of the collision and the resulting injuries. Even so, it is plain that it was causative. If the appellant had been proceeding at a lower speed, even by as little as 10 kilometres per hour, it is more probable than not that the collision would have been avoided.

26. The appellant also complains that the primary Judge was in error in holding that the respondent was not liable for contribution in relation to the injuries she suffered. The conclusion reached by the primary Judge was that there was nothing that the respondent could have done to avoid the collision, given the speed at which the appellant was travelling. That conclusion was based upon the appellant travelling at a speed of over 135 kilometres per hour. For the reasons given above, that factual basis cannot be supported. The conclusion was also based upon calculations made by the primary Judge as to the distances involved. Those calculations are also doubtful. The relevant and undisputed evidence would seem to have been that the “sight distance” on Adelaide Avenue in a westerly direction from the point of impact was 170-200 metres. Although it is not clear on the evidence how far the respondent was from the point of impact when she changed lanes, it would seem clear that the respondent had sufficient opportunity to observe the appellant’s vehicle in the bus lane if she had looked before she changed lanes. Indeed, this would seem to be true even if the police vehicle was travelling at 135 kilometres per hour. The respondent conceded as much before the primary Judge. The respondent was not entitled to assume that there would not be a vehicle travelling in the bus lane. This included the possibility that an emergency vehicle might be travelling in that lane at high speed.

27. The obvious consequence is that the respondent was also negligent in failing to keep a proper lookout, in changing lanes into the bus lane when it was unsafe to do so and in changing lanes without first indicating her intention to do so. The respondent’s negligence was also a cause of the collision and of the injuries she suffered.

28. The question then arising is whether the damages otherwise recoverable from the appellant should be reduced on the basis that it is just and equitable to do so having regard to the claimant's share in the responsibility for the damage: see s 102(1) of the Wrongs Act. Both the appellant and the respondent submitted that the other party’s “share” was proportionately greater than their own. We have reached the conclusion that each party’s responsibility was equally to blame for the resulting accident. The respondent’s driving was certainly inappropriate and dangerous. On the other hand, the appellant’s decision to drive at high speed placed the respondent and others at significant risk. It also had the consequence that any collision was likely to cause significant injury. In these circumstances we have concluded that it would be just and equitable to reduce the damages otherwise recoverable from the appellant by 50 per cent. The appellant accepted that if we reached the conclusion that damages should be awarded to the respondent then the order that the appellant pay to the respondent’s costs of the trial should not be interfered with.

29. For these reasons we would allow the appeal for the purpose of reducing the amount of the judgment from $232,452.30 to $116,226.15.

30. The respondent should pay the appellant’s costs of the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 10 December 2004

Counsel for the Appellant: Mr P Deakin QC with Mr P Nolan

Solicitor for the Appellant: Hunt & Hunt

Counsel for the Respondent: Mr B J Salmon QC

Solicitor for the Respondent: Higgins Solicitors

Date of hearing: 11 November 2004

Date of judgment: 10 December 2004

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