On 19 November 2018, between 4:30pm and 4:40pm, the appellant was reversing his white Ford Falcon ute out from next to a petrol bowser at a 7-Eleven petrol station at Toukley. In doing so, he backed into a pedestrian, Mrs Joan Horsey, who was in the process of returning to her car after going into the shop. It was accepted in this appeal that, at the time of impact, Mrs Horsey had been standing behind the vehicle for a period of about 30 seconds. The impact of the car caused very serious injury to Mrs Horsey's legs; particularly her left leg. Her left leg was, for some horrifying moments, trapped under the appellant's vehicle.
The appellant was charged and tried in the Wyong Local Court with the offence of negligent driving occasioning grievous bodily harm, contrary to s 117(1)(b) of the Road Transport Act 2013 (NSW) ('RT Act').
On 16 January 2020, the appellant was convicted of the offence in the Wyong Local Court. Two related charges (sequences 2 & 3) were then withdrawn. On 29 January 2020, the appellant was sentenced. On the same day, the appellant filed an 'all grounds' appeal against both his conviction and sentence. Upon the filing of the appeal, execution of the sentence was stayed.
[2]
ELEMENTS OF THE OFFENCE, DEFINITIONS AND PRINCIPLES
There is no definition of negligence, for the purpose of s 117(1) of the RT Act. That provision is to be construed, however, with reference to the objects of the RT Act, which relevantly includes the regulation of road users and improvement in road safety.
Section 117(3) provides that in determining whether the offence of negligent driving on a road is made out, the Court is to have regard to:
"(a) the nature, condition and use of the road on which the offence is alleged to have been committed,
(b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road,
(c) any obstructions or hazards on the road (including, for example, broken down or crashed vehicles, fallen loads and accident or emergency scenes)."
"Road" for the purposes of s 117(3) includes a 'road related area'. That expression is defined inclusively to mean an area, that is not a road, open to the public for driving, riding or parking vehicles. It was not disputed that when the collision with Mrs Horsey occurred, it occurred on a road, or a road-related area.
"Grievous bodily harm", for the purposes of this offence, is defined inclusively, to mean any permanent or serious disfigurement. It is common ground that at the time of the alleged offending, Mrs Horsey suffered grievous bodily harm.
The word "occasions" imports the causal connection between the negligent driving and a person suffering grievous bodily harm. This, I consider, required the Crown to prove that the appellant's negligence was a substantial or significant cause of the grievous bodily harm suffered by Mrs Horsey - it did not need to be the only cause of it (Royall v The Queen (1991) 172 CLR 378 and Swan v The Queen [2020] HCA 11 at [24]). A practical - but not exclusive - test is whether the victim would have suffered harm but for the alleged negligence. Further, the principle that the accused must take the victim as he found her carries the consequence that it does not matter whether Mrs Horsey was peculiarly susceptible to the really serious bodily harm that she suffered.
Neither in the Local Court nor in this Court did the appellant suggest the absence of the causal connection between his conduct and the grievous bodily harm. On the contestable premise that the appellant was negligent in his driving, I am satisfied beyond reasonable doubt that Mrs Horsey would not have suffered grievous bodily harm but for the negligence. That being so, on the premise that his conduct was negligent, the appellant did occasion grievous bodily harm to Mrs Horsey.
The only element of the offence in contention on this appeal, therefore, was whether the appellant drove 'negligently'.
I noted the absence of an express statutory definition of negligence. The Crown referred me to a dictionary definition that describes the concept as being conduct that is 'careless, unheedful or inattentive'. This was intended to inform the Court of the plain and ordinary meaning of the expression. But I do not find these synonyms helpful.
The Crown and appellant jointly referred me to the decision of DPP (NSW) v Yeo (2008) 51 MVR 157, which dealt with a predecessor provision to the current s 117(1)(b) where the Court said that:
"[27] Negligent driving is established where it is proved … that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.
….
[32] It is clear that negligent driving is to be regarded as something less serious than reckless or furious driving or in a manner dangerous to the public..."
Similarly, I do not regard this passage, with respect, to be particularly illuminating. This is one instance where the Court is required to apply what it understands as community standards to an evaluative assessment of whether a motorist has failed to exercise reasonable care. But that evaluative assessment is shaped by the mandatory considerations under s 117(3) of the RT Act, as well as the context indicated by the statement of some of the objects of the RT Act - the regulation of road users and improvement in road safety.
I am also mindful of the circumstance that the appellant was not charged with the offence under s 54 of the Crimes Act 1900 (NSW), which carries a maximum punishment of 2 years imprisonment. I consider that a lesser degree of negligence is required for the purposes of the subject offence, than that which would be required to establish the negligence under the Crimes Act; which standard has been said to be equivalent to the crime of manslaughter by negligence (R v D (1984) 3 NSWLR 29). That standard has been described as being proved by conduct that showed such disregard for the life and safety of others as to amount to a crime (R v Bateman [1925] All ER 45).
The Crown needed to prove negligence to the criminal standard of proof of beyond reasonable doubt.
In his submissions, the appellant cited the decision of the High Court in Derrick v Cheung (2001) 181 ALR 301. That was a civil case in which an award of damages was sought for personal injuries sustained by an infant who ran into the path of oncoming vehicle. The motorist, who was driving within the speed limit, was found at first instance to have driven too quickly given the circumstances. An appeal to the Court of Appeal was dismissed. At [14], the High Court held that the motorist was not negligent (according to the civil standard of proof): the unlikely event was the unattended infant darting across a busy road in front of a slow moving vehicle in such a way that a collision was inevitable.
The appellant also relied upon the Court of Appeal's recent decision in Ayre v Swan [2019] NSWCA 202 - another civil proceeding - as authority for the proposition that a motorist is entitled to expect that other drivers will take reasonable care for their own safety.
[3]
THE CROWN CASE
The Crown's position, at trial and on appeal, is that the act of reversing across the entrance area of a busy service station in a vehicle with limited visibility required the ordinary prudent driver, in the appellant's position, to arrive at a point where he could see what was behind the vehicle with no blind spot or blocked view. That standard of care, the Crown submits, was departed from. In this appeal proceeding, the Crown added that it was an inherently risky manoeuvre to try to reverse the truck into the parking bay, given the risk of passengers or vehicles. That being so, it was open to the appellant to drive forward and enter into the parking bay from a different position. Although the appellant might still have needed to reverse into the parking bay, he would have eliminated the risk of pedestrians or vehicles being behind him when he did.
Further, it contended that even if (contrary to what the learned Magistrate later found) he did look into the dashboard rear camera prior to reversing, in circumstances where he knew that the camera did not provide complete vision through the rear of the vehicle, he did not check the cameras with the degree of thoroughness which was required.
In the Local Court, the Crown relied upon CCTV footage of the incident. It was viewed by the Magistrate, but not marked as an exhibit. A large number of photos were in evidence depicting the layout of the service station, and the vehicle. In particular, blood droplets from Mrs Horsey were located near a hump in the road.
The Crown also relied upon statements by Mrs Horsey and one from Ms Claudine Matthews. She saw Mrs Horsey's left leg directly underneath the vehicle and after the vehicle rolled forward a metre (to release her leg), saw that a significant amount of skin had been torn from Mrs Horsey's left leg.
Save for a diagram of the service station, most of the Crown's case otherwise concerned proof that Mrs Horsey suffered grievous bodily harm. That element has been conceded.
The Crown also relied upon the ERISP of the interview of the appellant at Wyong police station on the day in question. The appellant did not give evidence in the Local Court.
[4]
THE APPELLANT'S ERISP INTERVIEW
The appellant indicated that he had held a driver license for about 30 years. His work involved significant driving: 400-500 kilometres a week, for work, but also to drive his wife for religious purposes. He had been driving this particular vehicle for 4 or 5 years.
On the afternoon in question, he was driving back from work at Cessnock: he had been installing the NBN. He was by himself. He was driving home and decided to fill up the car with petrol in the service station. He explained to the police that he had just filled the car with fuel. He did not see Mrs Horsey within the shop. As he went back to the car after paying, he paused to look at the bay behind her. He appreciated that it was busy.
Weather conditions were good: he recalled that it was a beautiful summer (or more accurately spring) afternoon. Visibility was good and nothing that he knew of affected his vision.
He said he got into his car. He glanced briefly (presumably) behind but did not see anything. He started to reverse and intended to reverse into the bay so he could fill some air into the vehicle. At the time he was reversing, he said he looked at his two cameras on the vehicle. One was in the middle of the vehicle; the other was just above the tow bar. He thought that both were working. These were installed because of the work that he did. He commented that the cameras did not give 180 degree visibility. He could not see anybody.
He said that although there were toolboxes at the back of the car, they did not obscure his view through the rear view mirror.
He recalled the reversing vehicle going over a hump. He had estimated that the car had reversed about 2 metres. Just after that, he heard a woman scream. At this point, he thought that he might have run over a person's leg; though he could not see anyone. He thought her leg or hand was stuck between the hump and his vehicle. He said he tried to drive the vehicle forward, so as to free the person.
He said he only saw Mrs Horsey when he got out of the car.
He said that he was shocked at the collision: he had not seen anybody after leaving the service station. No one was behind him. He said he had two cameras on his vehicle but the victim was not seen on those. He said he thought that Mrs Horsey was in the blind spot on his vehicle. He just did not see her.
He was not adjusting the radio in the car. He was not using his mobile phone. He could not recall anything that might have made him angry. He was unaware of any mechanical fault in the car. He could not think of any physical or mental incapacity affecting him. He was not affected by drugs, or alcohol.
He said that earlier in the day he had taken an antihistamine in the morning to deal with his sinuses. Because of the nature of his work, he is exposed to trees and plants and he had hay fever that morning. He said he took this every second day, although not automatically - it depended how bad his sinuses were feeling. He did not believe that his allergies affected him in any way.
[5]
CCTV FOOTAGE
Following inquiry by the Court, the appellant's solicitor, who appeared for him in the appeal, requested that I look at the CCTV footage that the Magistrate had had regard to. The Crown did not object to that course. In the event, I looked at selected extracts of the footage, as had been identified by the appellant and the Crown.
[6]
THE MAGISTRATE'S REASONS
It is established that on an appeal of this kind, proper discharge of this court's appellate function requires it to consider the Magistrate's reasons: Dyason v Butterworth [2015] NSWCA 52 per McColl JA at [27].
The Magistrate substantially commenced by noting that grievous bodily harm was not in issue. Nevertheless, her Honour noted the expert medical evidence that most of the material on the bone and light musculature had been removed from the left leg (and some, but less, on the right leg).
Her Honour had regard to a range of photos. She considered the evidence of Claudine Ms Matthews and the content of the appellant's ERISP interview. She found that at the time of the incident, the appellant was clear of alcohol and illicit drugs.
Her Honour closely considered the CCTV footage of the station from about 4:24pm to about 4:30pm.
Her Honour noted that at 4:28pm (and 48 seconds), Mrs Horsey walked between the bowser and the appellant's truck. At 4:29pm (and 11 seconds), the appellant returned to his vehicle. Her Honour returned to what the appellant had said in his ERISP, about his looking back to the bay that was used for filling the air. Her Honour was satisfied that the appellant looked over his right shoulder. She could not determine whether he looked at the screen. Her Honour found that he had a limited - to the point of non-existent - view of what was behind him if he was not relying on the cameras. She noted his admission that even if he looked at the cameras, there was a blind spot.
Her Honour recorded the appellant's submission, in effect, that Mrs Horsey stood for too long behind his vehicle. Her Honour rejected that. She considered that there was a large obstruction to the appellant's view: the constructed area on top of the ute limited his vision. The appellant was dependent upon his cameras. This was a busy service station. It was a busy time of day. Cars were coming and going.
The crucial part of her Honour's reasoning was that the appellant failed to check the cameras and failed to check behind his vehicle before trying to reverse the car with limited visibility. This was a busy area in which cars and other pedestrians cross.
Her Honour was satisfied that the Crown had proved, beyond reasonable doubt, that the appellant drove negligently.
[7]
The appellant's submissions
I referred earlier to the appellant's citation of Derrick v Cheung, as an instance where a motorist was ultimately found not to have been engaged in negligent driving in circumstances when confronted with the unlikely event of an unattended infant suddenly crossing the road. The appellant relies upon this case by analogy, suggesting that Mrs Horsey's actions in walking and being stationary behind the vehicle were equally unlikely. During argument on appeal, the appellant's solicitor emphasised that this was not just a case of a pedestrian randomly walking behind the vehicle and unfortunately being struck, but a pedestrian who inexplicably dawdled, for a period of about 30 seconds, in a stationary position behind the vehicle. It was suggested that if she was walking the appellant might have seen her. But the circumstance that she was in a stationary position meant that, not unreasonably, he assumed that no one was there.
Secondly, the appellant challenges the finding that he did not look behind his vehicle before getting into his vehicle.
Thirdly, the appellant challenges the finding that he did not look into the rear camera screen prior to reversing his vehicle.
Fourthly, the appellant contends that Mrs Horsey was standing no more than one metre behind the vehicle; which meant that his own car did not reverse further than a metre.
Fifthly, the appellant cites Ayre v Swan, again by way of analogy, to suggest that the appellant was entitled to expect that Mrs Horsey would take reasonable care for her own safety.
[8]
The Crown's submissions
The Crown submitted that none of these points, even if established, make out any appealable error.
As to the appellant's invocation of Derrick v Cheung, this was hardly an analogous case. An elderly motorist walking or standing behind a truck at a busy service station at about 4:30pm on a weekday afternoon was hardly to be so unlikely as to put a motorist off guard.
As to the second point, the Crown submitted that the evidence (including an admission he made in the ERISP interview, at A 26) was such that it was open to find that if he looked behind his vehicle at all (the appellant said that he had done so only very briefly), he was only preoccupied with whether he could safely enter the parking bay. This was not enough.
As to the third point, the Crown submits that CCTV footage does not sustain the appellant's evidence of his looking at the camera mounted on the dashboard. At any rate, even if there was a reasonable doubt about this, he accepted that he had only very briefly looked into the camera. Even then, the appellant admitted that the camera did not give him full, 180 degree, visibility and conjectured that Mrs Horsey could have been standing in the blind spot - i.e. one metre or so behind the vehicle.
As to the fourth point, the circumstance that the appellant's vehicle did not move more than a metre does not assist him. If, as was open to the Magistrate to find, Mrs Horsey was at or within a one metre distance, that is all that it would take for the collision to occur if he did not exercise appropriate care.
As to the fifth point, the proposition that motorists can assume that other drivers - or pedestrians - will take reasonable care to protect their interests is misconceived. There is no defence of contributory fault to the offence of negligent driving. As a matter of public policy, it might be added, it might lead to dangerous consequences.
[9]
Nature of the appeal
This is an appeal by way of rehearing, based on the evidence at trial. The question is whether the Court is satisfied that the Magistrate's decision was wrong.
A notable feature of this trial was that no oral evidence was called. That means that the usual caution that an appellate court might express in setting aside credit-based findings, especially those influenced by assessments of demeanour, is not applicable. Essentially, this Court is in as good a position as the learned Magistrate to make findings, and draw inferences from those findings. I have noted that in this appeal I have viewed the CCTV footage extracts which had been placed before, and relied upon, by her Honour.
Turning now to the appellant's grounds. I will deal with them slightly out of the order as submitted by the lawyers.
Firstly, this case is not equivalent to Derrick v Cheung. The prospect of an elderly adult pedestrian standing behind a motor vehicle at a petrol station on the afternoon of a weekday at the point she was struck was an altogether different prospect to an unattended infant running out on to a busy road.
I reject the appellant's submission that the circumstance that the pedestrian was standing made a real difference. In my opinion, given the deficiencies in his vision in seeing what was behind him, the appellant draws a distinction without difference: it would not have mattered whether at the point when he was commencing to reverse, she was stationary or was in the process of walking across behind the vehicle. To borrow temporarily from civil discourse, there was a foreseeable and not insignificant risk of a pedestrian actually being behind the appellant's vehicle at the time he started to reverse it; whether or not that pedestrian was stationary or moving.
Secondly, I reject the notion that in assessing whether the appellant was negligent, he was entitled to assume that a pedestrian in Mrs Horsey's position would exercise reasonable care for her own safety. As the Crown submitted, there is no contributory negligence defence for this offence. Contributory negligence serves as a defence in a civil claim to effectively reduce compensation for a claim for damages. The defence focusses only upon the conduct of the claimant for compensation; who, in this context, is the pedestrian struck by the motor vehicle. Further, the proposition that this defence might lower the standard of care expected of motorists is, in my opinion, antithetical to a legislative object under the RT Act; of improving road safety. Finally, it is an unnecessary distraction: the issue is whether, in all the circumstances, including, but not limited to, the risks arising from a pedestrian's unexpected conduct, an accused failed to exercise all reasonable care. Simply because a pedestrian may act in an unexpected way does not equate to an absence of risk that a pedestrian may act in an unexpected way. There are many ways and many reasons why a pedestrian may act in an unexpected way.
That is an ever present risk, indeed a fact of motoring life, that motorists must deal with. Consideration of whether a motorist is driving negligently takes into account the magnitude of a risk of a pedestrian suffering really serious bodily harm, and the reasonable response of a motorist to the risk; particularly in the light of the consequences, if that risk materializes. There are cases, such as Derrick v Cheung, where nothing could be done by a motorist in response to the risk that was raised. Here, noting the size of the vehicle that he was driving and the proximity of the victim to the vehicle, the prospect of severe injury being suffered if the appellant did not exercise reasonable care, was very significant. The appellant's response had to be commensurate with that risk.
Thirdly, I do not consider that the submission that the Magistrate found that he did not look back fairly represents the Magistrate's reasons. As I interpret them, her Honour did not say that he did not look behind prior to reversing: her Honour accepted, for example, that he looked over his right shoulder.
Fourthly, her Honour found that the appellant did not check his cameras. That amounted to an implied rejection of the appellant's evidence in his ERISP. The Crown did not dispute this. Its position was that the appellant's evidence was not borne out by the CCTV footage. Her Honour found that the CCTV footage did not disclose that he looked at it. However, the CCTV footage did not positively disprove that he looked through the cameras either. From this her Honour appeared to discount the appellant's evidence that he did check the camera, but did not explain why she rejected that evidence. In my view, this involved error.
Such error does not automatically require the Court to set aside the conviction. In its task on rehearing, the Court is empowered to substitute its own decision based upon its assessment of the law and the facts: Dyason v Butterworth [2015] NSWCA 52 at [28].
Even if there was a doubt whether he looked at the camera or not, in my view, it remained open to her Honour to find that the appellant did not take reasonable steps to negotiate a dangerous manoeuvre of reversing a vehicle with limited visibility. Put another way, it was not sufficient for the appellant to look at the cameras in response to the risk that confronted him. That was so because, as the appellant admitted knowing, there was a blind spot that the cameras could not pick up - particularly pedestrians or (less likely) cars within a metre to the rear of the vehicle.
The appellant's solicitor acknowledged that the appellant had referred to a blind spot, in his record of interview, but argued that this was merely conjecture on his part: it was not proven that he knew of the blind spot at the time of the conduct. However, as the Crown pointed out, his answers (A60 and A232) in his record of interview plainly evinced his awareness of the blind spot as a result of the configuration of the camera; which did not yield complete vision.
Further, her Honour found that visibility through the rear windscreen was severely inhibited. That finding is not challenged.
From these two findings, I conclude that there was a problem with the vision associated with reversing the car.
There was no challenge to her Honour's findings that this was a busy time of the day where, in the vicinity, to the rear, where the appellant parked his truck, there were likely to be passengers and other vehicles. This was not a situation, say, where the appellant was attempting to reverse his vehicle in the dead of night. In this sense, the consideration referred to in s 117(3)(b) of the RT Act is engaged, since the amount of 'traffic' on the 'road' (embracing 'road related areas' like a petrol station) extends to "pedestrian traffic" (s 4). I have considered, but do not place much weight on, the considerations referred to in s 117(3)(a) and (c).
The appellant was, in effect, leaving it to chance that a pedestrian or vehicle was not less than a metre behind his car, when he commenced to reverse his car. The evidence suggests that Mrs Horsey was standing about one metre from the vehicle at the point of impact. Although the appellant reversed back by no more than one metre, and although he was not reversing with undue speed, he nevertheless reversed in the context of the foreseeable risk that, at the point of reversing, a pedestrian was within or about a metre away from the car. He reversed in circumstances when a reasonable motorist in his position should have known that because his visibility to the rear of the vehicle was impaired, he could not safely assume that a pedestrian would not be within a metre at the time he started to reverse.
The solicitor for the appellant asks rhetorically, what should the appellant have done differently in order to get into the parking bay behind his car? The Crown's answer was that he could have approached the parking bay away from the bowser. The still photos (Exhibit A) before the Court suggested that there was in fact an entrance into the station (behind the bowsers) from which the appellant could have commenced his reverse. As the appellant's solicitor argued in rebuttal, the appellant would have still had to reverse his car. But because of the humps behind the parking spots in the parking bay, the difference is that he would have been reversing with virtually no risk that a pedestrian would be behind him at the point where the vehicle would have to stop.
Having regard to the potentially significant physical harm that might be occasioned by the appellant's vehicle striking a pedestrian from behind, it was negligent for the appellant to take the risk that with the limits to his visibility, including the limits to his cameras and the visibility out of his rear windscreen, there was no pedestrian within about a metre as he commenced to reverse.
I affirm the finding that the appellant drove negligently, if for slightly different reasons to the learned Magistrate.
The appeal against conviction is dismissed.
[10]
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Decision last updated: 19 May 2020