Stone v Cleanaway Pty Ltd t/as Cleanaway; PTH Pty Ltd v Cleanaway Pty Ltd & Mahoney; Central West Auto Auctions Pty Ltd v Cleanaway Pty Ltd & Mahoney

The nature of the appeals

1. The appellants seek orders in each of the three appeals that: 1. The judgment of the Court below be set aside; and 2. The proceedings be remitted to the Local Court for determination according to law; or 3. Alternatively, there be a judgment for the appellant in each of the proceedings and the respondents pay the appellant's costs of the proceedings; and 4. The first respondent (Cleanaway) repay the sum of $67,238.40 plus interest (being the amount paid to Cleanaway in satisfaction of the judgment in the Local Court).
2. In accordance with s 39 of the Local Court Act 2007 (NSW), an appeal against a judgment of the Local Court can only be made in respect of an error of law. The appellants accept that they are required to establish that the learned Magistrate either acted on some wrong principle, misapprehended the facts or failed to consider relevant evidence. Further, the appellants submit that a failure to give adequate reasons will constitute an error of law.
3. The appellants submit that there is a strong inference that relevant evidence was not considered and, at the very least, the failure to give reasons leaves the appellants in the position that they do not know why their defence to the Cleanaway claim failed and why their claims against Mr Mahoney and Cleanaway failed.
4. In the amended summons, the appellants identify 18 grounds of appeal, as follows: 1. The learned Magistrate erred at law by failing to give reasons or adequate reasons as to why Mahoney was not negligent. 2. The learned Magistrate erred at law by failing to address and/or give reasons why the following submissions were rejected: a. That Mahoney had an obligation to give way to Stone and was negligent; b. That Mahoney was required to give way to Stone by operation of road rule 84; c. That Mahoney was negligent by failing to brake or stop his vehicle which was travelling slowly, to avoid a collision with Stone's approaching vehicle; d. That Mahoney was negligent by failing to see or check for Stone's approaching vehicle before reversing his truck across a highway into the path of Stone; e. That the CCTV evidence should not be used to corroborate Swanson's evidence about Stone's braking in light of the warnings set out in Goode v Angland [2017] NSWCA 311 at 85-114; f. That Stone was not negligent in circumstances where he did not know whether or not he could stop and whether or not he may lose control of his truck and part of his load; g. That it was reasonable for Stone to assume Mahoney would obey the road rules and give way to Stone; h. That Stone could not have been rounding the corner onto Durham Street when Mahoney said he checked and saw Stone when he started to reverse; i. That Stone was at or about William Street when Mahoney started to reverse; j. That had Mahoney looked out his [driver'] side window when his cabin was perpendicular to Durham Street would have seen Stone approaching at 60 km/h about 80m from where his headlights first appear in the CCTV footage; k. Mahoney had 15 seconds of opportunity to check for oncoming vehicles and stop and give way to Stone; l. That at 60 km/h it would take Stone 24 seconds to travel 400m which would place Stone rounding the corner at the time Mahoney pulled to the left and was waiting for the traffic to clear before making his 90-degre turn. 3. In the alternative the learned Magistrate erred at law by failing [the] consider the submissions and failed to exercise jurisdiction. 4. The learned Magistrate erred at law by failing to give reasons or adequate reasons as to why the CCTV footage was the best evidence in light of the warnings set out in Goode v Angland [2017] NSWCA 311 at 85-114. 5. The learned Magistrate erred at law by failing to give reasons or adequate reasons as to why Stone was negligent and what the reasonable precautions were that Stone failed to take to [avoid a] collision. 6. The learned Magistrate erred at law by failing to refer to the relevant evidence. 7. The learned Magistrate erred by failing to make material findings or fact. a. Whether Mahony's vehicle was positioned entirely on the southbound side of the roadway after he had completed his turn across the highway just prior to commencing his reversing manoeuvre. b. Where Stone's vehicle was at the time Mahoney commenced his reversing manoeuvre. c. The speed of Stone's vehicle. d. The speed of Mahoney's vehicle. e. The distance from Stone's vehicle to the point of impact at the time Mahoney commences his reversing manoeuvre. f. The distance from Stone's vehicle to the point of impact at the time Mahoney commences his reversing manoeuvre or re-entered the northbound side of the roadway. g. The distance from Stone's vehicle to the point of impact at the time Mahoney ought reasonably have been on notice that Mahoney was not going to slow or stop. h. Whether Mahoney checked for and saw Stone's truck prior to or whilst reversing. i. Whether Stone braked. 8. The learned Magistrate erred at law by failing to set out reasons for the findings of facts and the application of the law to those facts. 9. The learned Magistrate erred at law by failing to address the substance of the appellant's case that Mahony was negligent, such that it was a constructive failure to exercise jurisdiction and a denial of natural justice. 10. The learned Magistrate erred at law by finding that Stone was negligent in circumstances where that finding was legally unreasonable. 11. The learned Magistrate erred by failing to find that Mahoney was negligent in circumstances where that finding was legally unreasonable. 12. The learned Magistrate erred at law by misapplying the agony of the moment principle by in effect requiring the plaintiff to adduce expert evidence to objectively verify Stone's contention that emergency braking could cause his load to dislodge and cause him to lose control of the truck. 13. The learned Magistrate erred at law by finding that at no time in evidence did Mahoney state that the Cleanaway tanker was blocking both northbound lanes as such a finding was contrary to the evidence. 14. The learned Magistrate erred at law by finding that there was no evidence that Stone tried to warn Mahony by sounding his horn when there had been no disclosure of such an adverse conclusion and evidence concerning the sounding of a horn had been objected to and rejected. 15. The learned Magistrate erred by failing to give reasons as to why Stone's evidence was rejected as to the decision made to pass behind the Cleanaway Tanker in the hope that the driver of it would see him and stop and let him pass. 16. The Learned Magistrate erred by failing to give reasons why Mahoney was not negligent having found that he was already too committed to the manoeuvre to stop. 17. The learned Magistrate erred at law by failing to give reasons or adequate reasons as to why Stone's actions in attempting to pass the reversing Tanker was dangerous and ill considered. 18. The learned Magistrate erred at law by failing to identify what evidence of Stone was rejected and the reasons for rejecting that evidence.
5. It is difficult to accept that all of these appeal grounds, if established, could be errors of law. Some appear to be merely challenges to the learned Magistrate's findings of fact described as errors of law.
6. Having said that, it seems to me that the grounds of appeal can be divided into three categories, being: 1. Misapprehension of the evidence and failing to consider all relevant evidence; 2. Failing to properly apply legal principles, such as the appeal grounds with respect to the use of video evidence and the significance of r 84 of the Road Rules 2014 (NSW) ('Road Rules'); and 3. Failing to give adequate reasons.
7. I invited the parties to consider whether any of these alleged errors might have been errors of mixed fact and law. They did not suggest so. Further, both parties maintain that if the appellants succeed on appeal, the matter must be remitted to the Local Court for a new hearing or further consideration by the learned Magistrate in accordance with the law. Neither party suggested that I could or should redetermine the matter.

Circumstances of the collision

1. The circumstances of the collision are not really in dispute. As correctly identified by the learned Magistrate, the central question related to who was responsible.
2. Shortly prior to 4.00am, Mr Mahoney was driving the Cleanaway vehicle in a westerly direction along Durham Street (which forms part of the Great Western Highway) in Bathurst. He was driving the vehicle along Durham Street for the purposes of attending a worksite where he was required to remove grease from a grease truck.
3. As Mr Mahoney arrived adjacent to the site, he pulled over to the left-hand side of the road before turning right across the lanes of traffic through a break in the dividing strip. His intention was to then reverse into the driveway on the southern side of the road at the premises where he was required to do the aforementioned work. He thus turned the vehicle so that it was positioned perpendicular across Durham Street.
4. There is a dispute as to how far across the eastbound lanes Mr Mahoney drove his vehicle. That is, the appellants submit that the Cleanaway vehicle was up against the kerb on the northern side of the road, such that before it commenced to reverse, most of the vehicle (including the trailer) was on the other or northern side of the road, thereby blocking eastbound traffic (if there was any), but not westbound traffic.
5. The Cleanaway vehicle was well lit. At the time when Mr Mahoney was positioning his vehicle so as to reverse back into the site on the southern side of the road, Mr Stone was driving the Central West vehicle also in a westerly direction along Durham Street; that is, coming along behind the Cleanaway vehicle, although some distance behind.
6. At some point, Mr Stone must have seen the Cleanaway vehicle perpendicular to the direction in which he was travelling. According to Mr Stone, whilst he braked, there was insufficient time for him to apply the emergency brake and he did not do so. Instead, he says that, although he slowed down, he continued in the westerly direction, attempting to go behind the Cleanaway vehicle, seemingly believing there was time and space to do so.
7. There was a collision between the prime mover being driven by Mr Stone and the reversing trailer being controlled by Mr Mahoney. The point of impact is not entirely clear, although Cleanaway maintains that the front of the Central West vehicle collided with the side of the Cleanaway vehicle. No suggestion was made to the contrary on behalf of Central West. That tends to suggest that at least by the time of the collision, Mr Mahoney had reversed the Cleanaway vehicle to such an extent across the westbound lanes that there was no space for Mr Stone to go behind the reversing vehicle. Instead, he collided with the side of the Cleanaway vehicle towards the rear of the trailer.
8. CCTV footage was shown from a camera positioned inside the premises on the northern side of the roadway. Although it is a bit blurry, it shows Mr Mahoney manoeuvring his vehicle across the roadway and starting to reverse. At some point prior thereto, the lights of Mr Stone's prime mover come into focus or are shown as they approach the point where the collision occurs. The CCTV footage then depicts the Central West vehicle colliding with the Cleanaway vehicle. It was not a minor collision. There was a significant impact.
9. The collision was observed by an independent witness, Mr Shane Swanson, who was leaving a nearby McDonald's carpark at the time. He said that as he was leaving the carpark, he saw the Cleanaway vehicle reversing. At the same time, he saw the Central West vehicle travelling quickly in a westerly direction. In his view, the Central West vehicle did not appear to slow down or brake as it approached the Cleanaway vehicle.
10. In his evidence, Mr Swanson said he thought the driver of the Central West vehicle (Mr Stone) must have believed that he had enough room to get between the driveway/carpark and the reversing Cleanaway truck because the Central West vehicle was not slowing down at all.
11. Mr Swanson said he thought that the driver must have been attempting to duck up inside the reversing truck but he certainly didn't achieve that. He said he was gobsmacked that the driver was going to try and do it. He accepted in further evidence that he was unable to estimate the speed of the Central West vehicle but thought that it was going too quickly, having regard to that which was happening before it (being the reversing truck).
12. Mr Swanson disagreed that it would be difficult for him to determine whether the Central West vehicle was slowing down; he said he was sure that he would have heard the truck decelerate.
13. Both truck drivers gave evidence, as did Mr Swanson. The CCTV footage was shown and relied upon by the learned Magistrate.
14. It was Central West's case that Mr Stone only saw the Cleanaway vehicle approximately 100 metres from the point of collision, that he was travelling within the speed limit and that there was neither time nor space for him to take any alternative action, other than trying to go around the back of the reversing vehicle.
15. This case was based on Mr Stone's statement that he did not apply the truck brakes because he thought that the load on the car transporter may dislodge under emergency braking. It was Central West's case that the decision of Mr Stone to attempt to pass behind the reversing vehicle was made in the agony of the moment and that, in those circumstances, he should not have been found to have been negligent. Central West maintains that it was not necessary for it to call expert evidence to support Mr Stone's belief as to the possibility that emergency braking might have dislodged the vehicles he was towing. There was no evidence to the contrary.
16. Central West's case was that the collision was caused by the negligence of Mr Mahoney. It submitted that Mr Mahoney must have made no check before reversing or, if he did so, he made an inadequate check. It should have been apparent to Mr Mahoney that the Central West vehicle was approaching and he should not have continued to reverse across the roadway. He should have continued to observe the approaching Central West vehicle. He should have known that that vehicle would not have been able to stop.
17. On the other hand, it was Cleanaway's case that Mr Mahoney was performing a manoeuvre across the street which was not unusual and it was, indeed, necessary in the circumstances for large trucks to reverse into a worksite. It was 4.00am in the morning and the Cleanaway truck was well lit. Mr Stone was in a position to see the vehicle, had he been paying attention, and he had a sufficient distance to stop. Cleanaway relied on the evidence of Mr Swanson to the effect that Mr Stone did not even try and slow down and he must be taken to have decided to go behind the vehicle as it was reversing, rather than attempt to stop.
18. As would seem obvious, all these submissions required the learned Magistrate to assess the evidence and make factual findings. A finding contrary to Central West's position is not an error of law unless the finding was in some way infected by a failure to consider evidence or the misapplication of principle. It must be said that most motor vehicle accident cases depend on findings of fact as to which driver was in a position to take steps to avoid the collision.

The judgment

1. The learned Magistrate correctly identified that the only issue before the Court was liability; namely, who caused the collision (wholly or in part). As her Honour said, in order to determine that issue, she needed to analyse the evidence of each of the witnesses. Her Honour then proceeded to do so, albeit the appellants are critical of the learned Magistrate in respect of that analysis. Her Honour also analysed the CCTV footage with reference to what was shown in the footage and the precise times (on a second-by-second basis). Her Honour then referred in some detail to the submissions of Mr Gruzman, as well as the cases referred to by Mr Gruzman in his submission relating to the agony of the moment.
2. The learned Magistrate went on to specifically state that she did not agree with those submissions, particularly in respect of Mr Mahoney's evidence, further noting that there was no expert evidence filed in support of Mr Stone's assertions in respect of the emergency brakes. Her Honour also noted that Mr Stone did not plead that he acted in the agony of the moment.
3. The learned Magistrate observed that the best evidence before her was the CCTV footage, which she watched on a number of occasions. In her view, it corroborated the evidence of Mr Swanson. It was inconsistent with the evidence of Mr Stone. Her Honour concluded that Mr Stone was responsible for the accident. Her Honour concluded: [38] In my view, Mr Stone was responsible for the Accident, in that he was negligent in failing to take reasonable precautions to avoid a collision with the Cleanaway Tanker when he saw the vehicle pulled across the road and reversing. I am satisfied on balance the risk was obvious and foreseeable and his action in attempting to pass the reversing Cleanaway Tanker was dangerous and ill considered. He also failed to take any reasonable steps to avoid what was happening in the vicinity of his vehicle.

The appellants' submissions

1. The appellants acknowledge that the primary issue for determination by the learned Magistrate was whether the drivers were negligent. They submit that although her Honour made a finding that Mr Stone was negligent, having addressed and made findings with respect of the evidence to his driving, she failed to address and make findings of fact or give reasons why certain findings of fact were made in respect of the driving conduct of Mr Mahoney. They say that the learned Magistrate failed to address and give reasons why submissions put forward by the appellants were impliedly rejected. They submit that the finding that Mr Mahoney was too committed to the manoeuvre to stop is not properly explained and does not have sufficient reasoning behind it.
2. Further, they submit that the learned Magistrate failed to provide reasons as to why Mr Stone was negligent, simply finding that Mr Stone failed to take reasonable precautions without identifying the precautions that he should have taken.
3. More specifically, they submit that Mr Mahoney was required to give way to Mr Stone and the learned Magistrate failed to deal with that submission. This suggestion is based on r 84 of the Road Rules. They submit that the learned Magistrate was required to determine whether there was a break or a dividing strip within the meaning of r 84 and to make findings as to the position of the various vehicles on the roadway, and whether it was incumbent upon Mr Mahoney to give way to the approaching vehicle (being Mr Stone's vehicle).
4. The appellants submit that it was their case in the Local Court that Mr Mahoney was negligent in failing to see Mr Stone approaching and slowing or braking, so as to avoid a collision. They say that the learned Magistrate did not deal with that submission at all. Her Honour made no findings as to the positions and movement of the vehicles or speeds of the vehicles at any particular time. Further, despite finding that Mr Stone was negligent, there is no finding that Mr Stone failed to keep a proper lookout or the point at which he should have applied the brakes.
5. Further, the appellants submit that her Honour misused the CCTV footage in placing such reliance on the footage. Finally, they submit that her Honour erred in not accepting that Mr Stone was acting "in the agony of the moment" or, at least, that her Honour's reasons were inadequate.

Appeal grounds 6, 7, 8, 9, 11, 13, 14, 15, 16, 17 and 18

1. The appellants submit that these appeal grounds identify numerous aspects of the evidence that required determination for the purposes of resolving the ultimate question of whether Mr Mahoney was negligent and whether Mr Stone was negligent.
2. They say that her Honour failed to make various findings of fact which were necessary for the purposes apportioning responsibility. They say that her Honour failed to deal with their submissions as to the liability of the respondents and the conduct of Mr Mahoney. In particular, they say that her Honour failed to make necessary findings as to the speed of the vehicles, their positioning at various times and the distances available to the drivers to take evasive action.
3. They say that the findings against Mr Stone and in favour of Mr Mahoney were legally unreasonable.
4. The appellants submit that any determination of the facts required a consideration of r 84 of the Road Rules and Mr Mahoney's actions in this regard.
5. Rule 84 of the Road Rules is in the following terms: "(1) If a driver drives through a break in a dividing strip that has no stop sign, stop line, give way sign or give way line, the driver must give way to - (v) Any vehicle travelling on the part of the road the driver is entering (except a vehicle to which a stop sign, stop line, give way sign, or give way line, applies)"
6. The learned Magistrate did not refer to r 84. That is, she did not refer to the appellants' submission that evidence of a failure to comply with r 84 was evidence of negligence. However, r 84 says nothing more than when a driver is proceeding through a break in the dividing strip, the driver should give way to oncoming traffic (unless the oncoming traffic is subject to a give way or stop sign).
7. The appellants' point is that, as Mr Mahoney was reversing across the roadway through the break in the dividing strip, he was obliged to give way to Mr Stone. That may be so. A driver of a vehicle reversing across the roadway is hardly entitled to reverse across the path of oncoming traffic unless satisfied that it is safe to do so. However, that does not mean that a failure to comply with road r 84 gives rise to strict liability. It may be evidence of negligence but whether it is and whether there was such a failure must depend on the particular circumstances of the case.
8. The fact of the collision does not lead to the conclusion that Mr Mahoney failed to comply with r 84 (or even that r 84 applies). The learned Magistrate found that, by the time Mr Mahoney saw Mr Stone travelling towards his reversing vehicle, he was too committed to his manoeuvre do anything about it. Implicit in that finding must be acceptance of the proposition that Mr Mahoney did not fail to take care when turning his vehicle across the road and through the dividing strip and did not fail to take care when he commenced reversing his vehicle across the westbound lanes. Even if Mr Mahoney was not continuing to look directly east towards the oncoming traffic, it was too late for him to manoeuvre his vehicle out of the way of the Central West vehicle.
9. Her Honour accepted the evidence of Mr Swanson, who observed that Mr Stone did not slow down and was trying to go behind the reversing truck. It must be implicit in her Honour's findings that her Honour accepted that Mr Stone saw the reversing vehicle in sufficient time and space to come to a stop without colliding with it (instead of trying to go around the back of it). Again, it is difficult to accept that the appellants were unable to discern from the judgment what Mr Stone might have done in accordance with his obligation to exercise reasonable care.
10. I do not consider that there is any merit in the numerous complaints relating to a failure to consider relevant evidence or make necessary findings, albeit that it might have been preferable if her Honour had made some additional specific findings. I will comment further on this aspect in the 'reasons' section of this judgment.
11. Plainly, her Honour found that Mr Stone was negligent and Mr Mahoney was not. She found that Mr Mahoney was not negligent because he was too committed to his manoeuvre to do anything about the approaching truck as he reversed across the roadway. This finding must be viewed in the context of Mr Swanson's evidence about Mr Stone; that is, that he was proceeding quickly and did not appear to slow down. Her Honour also noted when setting out her analysis of Mr Mahoney's evidence that he had a view down Durham Street through his side window.
12. Whilst her Honour did not say so specifically, it must be that her Honour did not consider that Mr Mahoney failed to take care when driving across the road and commencing to reverse. As Mr Mahoney said, he checked for traffic before doing so and there is no suggestion that when he turned across the roadway he did not do so safely (in the sense that he turned across the path of Mr Stone's vehicle).
13. Her Honour found that Mr Stone was negligent, after a consideration of all of the evidence, because he failed to take reasonable care. That finding must be considered in light of her Honour's acceptance of Mr Swanson's evidence and her Honour's view that the CCTV footage corroborated Mr Swanson's evidence.
14. In a case such as this, evidence as to distances and timing might be necessarily imprecise as estimates and recollections can vary. The proposition that it was necessary for her Honour to make precise findings as to speed and distance before accepting that one driver was negligent and the other was not must be rejected. In some cases, such precision is not possible but the Court is still in a position to make a determination as to a failure to take care.
15. Further, her Honour undertook a second-by-second analysis with reference to the CCTV footage. This showed that the vehicle driven by Mr Stone came into view 11 seconds before the collision. This is consistent with Mr Mahoney's evidence that he first saw the headlights of the other vehicle through his right-side mirror as he was reversing and that the collision happened approximately 10 seconds later. Acceptance of Mr Mahoney's evidence thus means that Mr Mahoney was looking for approaching vehicles but he saw the other vehicle only after he was already reversing across the road, which again supports the conclusion that he was already too committed to the manoeuvre to do anything (meaning that he was already blocking the westbound side of the road and there was insufficient time to do anything to avoid the collision).
16. Having accepted Mr Swanson's evidence and having regard to the CCTV footage, a finding of negligence on the part of Mr Stone was compelling. Different findings might have produced a different result (that is, acceptance of Mr Stone and rejection of Mr Swanson) but there is no error of law in the findings made.

Use of CCTV footage - Appeal ground 4

1. The appellants submit that the learned Magistrate: 1. relied on the CCTV footage (suggesting it was the best evidence) in circumstances when to do so was contrary to the Court's general caution in respect of the use of such footage (citing Goode v Angland); [1] and 2. failed to provide reasons as to why she did not accept the appellants' submission about use of the CCTV footage and why it supported a finding against Mr Stone.
2. In my view, there is no merit in this ground of appeal.
3. Use of video evidence must be approached cautiously but her Honour was quite entitled to examine, refer to and give weight to footage which was taken contemporaneously with the event, which depicts the collision and which shows the position of both vehicles at least at some point prior to the collision.
4. The Court has often cautioned against placing too much reliance on photographic or video evidence but that is normally in the context of photos or video taken after the event or by way of a reconstruction.
5. In Blacktown City Council v Hocking, [2] Spigelman CJ observed at [7]: "It is not entirely clear in what circumstances photographs can be used as direct evidence, as distinct from explicating the evidence otherwise given."
6. In Goode v Angland (at [93]), Beazley P observed that the issue which frequently arises is that photographs can be deceptive, particularly in relation to perspective and distance.
7. All of those observations are pertinent but the CCTV footage in this case is footage taken contemporaneously with the relevant events. It is not footage or photographs taken after the event by way of some form of reconstruction.
8. In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd, [3] Sackville AJA said: "The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved."
9. As I have already noted, the learned Magistrate reviewed the CCTV footage and included in her judgment a second-by-second summary of the footage. The appellants do not submit that her Honour's description of what was shown in the footage or the time when it is shown is incorrect.
10. Her Honour identified that: 1. At 13 seconds into the footage, the Cleanaway vehicle started to turn across the highway; 2. At 20 seconds, the Cleanaway vehicle stopped close to the kerb of the eastbound lane; 3. At 22 seconds, the Central West vehicle appeared on the screen at the top left-hand corner; 4. At 24 seconds, the Cleanaway vehicle began to reverse; and 5. At 33 seconds, the Central West vehicle hit the Cleanaway vehicle.
11. It follows that the Central West vehicle came into the CCTV footage frame 11 seconds before the collision. Further, the Cleanaway vehicle started to reverse 9 seconds before the collision. Her Honour was entitled to have regard to the timing of events.
12. Further, her Honour did not use the CCTV footage in isolation to determine the facts. In her Honour's view, the footage corroborated the evidence of Mr Swanson that the car transporter did not appear to slow down or brake as it approached the tanker.
13. In the end, her Honour preferred the evidence of Mr Mahoney and the independent witness, Mr Swanson, accepting that it was corroborated by the CCTV footage. There was no error in her Honour's approach.

Agony of the moment - Appeal ground 12

1. The appellants contend that Mr Stone was faced with a decision which he was required to make "in the agony of the moment". Mr Stone expressed concern that, if he attempted to apply the emergency braking or brake too quickly, the vehicles on his car transporter may dislodge. It was in those circumstances that he attempted to pass behind the Cleanaway vehicle, albeit he was not successful in doing so.
2. The appellants submit that they did not have to prove that the vehicles would have dislodged in an emergency braking scenario and that it was not necessary to call expert evidence to that effect.
3. I agree that it was not necessary to adduce expert evidence that the vehicles would have dislodged if the emergency braking had been applied.
4. The question is whether the driver held a reasonable belief, objectively assessed, that the safest course was to go around the back of the reversing vehicle rather than apply such brakes as were available to avoid the collision. This question could only be addressed having regard to all of the evidence. It is no answer to a claim in negligence merely to say that the person acted in the agony of the moment, if in fact there was time and space to take precautions which were reasonably available.
5. Breach of duty of care must be assessed prospectively, that is, looking at the position of the driver at the time the decision was made, not after the event. The Court does not look backwards at what actually occurred for the purposes of determining breach. An error of judgment is not necessarily negligence. A decision made in the agony of the moment may end up being incorrect but the question remains whether at the time that the decision was made the driver was taking reasonable care, having regard to the time and space available.
6. It cannot be said that her Honour did not properly consider and deal with the appellants' "agony of the moment" submission. Her Honour referred to all of Leishman v Thomas (1957) 75 WN NSW 173 at 175; Stuart v Walsh [2012] NSWCA 186 and Warth v Lasky [2014] NSWCA 94 ('Warth').
7. It is only necessary to reiterate the observations of McColl JA (with whom Preston CJ of LEC and Tobias AJA agreed) in Warth as follows: "Finally, I would observe that the appellant's agony of the moment submissions fail to engage with the content of the appellant's duty of care in the circumstances. The "so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved": Leishman v Thomas (1957) 75 WN(NSW) 173 (at 175) per Street CJ; quoted with approval in Stuart v Walsh [2012] NSWCA 186 (at [61]) per Tobias AJA (Bathurst CJ and Basten JA agreeing)"
8. The appellants seek to elevate an "agony of the moment" decision to some form of independent legal principle which needed to be considered by the learned Magistrate separately from any findings relating to a failure to take care. I can only reiterate what was said in Warth that the so-called "agony of the moment" principle is nothing more than an application of the ordinary approach to a finding of negligence.
9. If, when confronted with a dangerous situation, a driver makes a decision to adopt a course which ultimately proves to be wrong i.e. a collision ensues, the question still remains whether in making that decision, the driver failed to take reasonable care. The fact that the driver only had limited time to make the decision or was faced with two competing adverse situations does not alter the principles to be applied. Drivers are often faced with the need to make instantaneous decisions on the roadway. There is no principle that, because they have to make them quickly or instantaneously, they are excused from exercising reasonable care.
10. The learned Magistrate did not accept that the appellants' so-called "agony of the moment" submission in some way meant that Mr Stone did not fail to take care. Whether it was pleaded is irrelevant. In a sense, the appellants' complaint about the alleged failure to deal with the "agony of the moment" submission is related to the complaint that the learned Magistrate did not identify the reasonable precautions that Mr Stone should have taken and when he should have taken them.
11. The "agony of the moment" submission is really nothing more than a submission that there were no reasonable precautions that Mr Stone could have taken in the time and space available to him. Plainly, the learned Magistrate did not agree, albeit as I will discuss when dealing with the reasons point, her Honour did not specify what reasonable precautions Mr Stone should have taken.
12. In my view, there is no merit in the appeal grounds relating to any failure to properly apply and consider the "agony of the moment" submission.

Reasons

1. A central theme in the appellants' submissions is that the learned Magistrate did not give adequate reasons; that is, reasons for accepting the Cleanaway case in its entirety and rejecting the appellants' case, particularly as to the negligence of Mr Mahoney.
2. Of course, the learned Magistrate was required to provide adequate reasons for the decision. As was observed in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 441, per Meagher JA) ('Beale') an important basis for the Court's provision of reasons is that a party seeking to appeal a decision may only generally appeal when the trial judge has made an error of law. The absence of reasons may prevent an appellate Court from determining whether the judgment contained such an error. Further, a failure to provide sufficient reasons may lead to a sense of grievance on the part of a person who does not understand why the decision was made. [4]
3. The appellants say that that is their position.
4. However, the content of the reasons which are required must depend upon the particular circumstances of the case. As is often said, reasons need not necessarily be lengthy or elaborate. Again, in Beale, [5] Meagher JA pointed to the three fundamental elements of the statement of reasons which are: 1. To refer to relevant evidence; 2. To set out any material findings of fact and any conclusions or ultimate findings of fact; and 3. To set out the reasons for making the relevant findings of fact and reasons in applying the law.
5. The appellants submit that the learned Magistrate's reasons do not satisfy these three requirements (they submit that the reasons are inadequate).
6. The appellants complain that her Honour did not give proper reasons as to why Mr Stone was negligent, specifying only that Mr Stone failed to take reasonable precautions without stating what the precautions were. It is usual in a negligence action for the tribunal of fact to specify the ways in which the party found to have been negligent failed to take reasonable care. The appellants complain that they do not understand from the reasons what it is that Mr Stone should have done and when he should have done it.
7. Having said that, not every failure to provide adequate reasons leads to success on appeal, nor should reasons be viewed too critically and in an impractical or technical way. If, on the evidence, the conclusion reached by the trial judge was the only available conclusion, then the failure to give reasons would not lead to a new trial. [6]
8. In this matter, at least on one view, the issues before the learned Magistrate were not complex. Her Honour was required to assess all of the evidence and come to a view as to the facts; that is, the facts as to how the collision occurred and whether there were reasonable precautions that either Mr Stone or Mr Mahoney should have taken to prevent the collision.
9. There can be no doubt that each driver owed a duty of care to the other and, as such, that they were obliged to take reasonable precautions to avoid the collision.
10. In some cases, the reasonable precautions which a person might have taken would be obvious. In this matter, Mr Stone was travelling along Durham Street when he must have observed the Cleanaway vehicle. Leaving aside his submission in respect of the "agony of the moment", the only precautions he could have taken were to slow down, brake or control his vehicle so as to avoid the collision. The learned Magistrate must have accepted that Mr Stone should have taken those precautions.
11. Further, in a case such as this (which is essentially a contest of facts), it was incumbent upon the learned Magistrate to review all of the evidence and set out the salient features of the evidence. However, it was not incumbent upon the learned Magistrate to comment on every aspect of the evidence.
12. It must be remembered that both parties' claims arise out of a failure to take care. As such, s 5B of the Civil Liability Act 2002 (NSW) ('CLA') applies. It was necessary for the tribunal of fact to make findings in accordance with ss 5B and 5D of the CLA (with respect to causation). However, no party directed her Honour to s 5B and s 5D and the appellants do not complain about any failure to mention the CLA.
13. It is obvious that the learned Magistrate preferred the evidence presented on behalf of Cleanaway to that presented on behalf of the appellants. It is clear from her Honour's analysis that the findings were based on: 1. Acceptance of Mr Swanson's evidence as corroborated by the CCTV footage; 2. Acceptance of Mr Mahoney's evidence; and 3. Non-acceptance of Mr Stone's evidence that he slowed down but could not slow in sufficient time to avoid the collision (rather, preferring Mr Swanson's observation that Mr Stone was traveling quickly and did not slow down).
14. It would have been preferable if her Honour had identified the precautions which Mr Stone should have taken but it seems obvious what they are. It would have been preferable if her Honour had been more fulsome in her reasons for rejecting the appellants' case that Mr Mahoney was negligent, but her view is summarised in the finding that he was too committed to his manoeuvre to avoid the collision.
15. I reject the submission that the appellants are unable to understand why their case against Cleanaway was not accepted. The determination in this case was based on a preference for the evidence of the independent witness as corroborated by the CCTV footage and a preference for the evidence of one driver over the other.

Conclusion

1. I do not accept the criticisms made by the appellants to the effect that the learned Magistrate did not properly consider the evidence. It is apparent from the judgment that her Honour considered the evidence of all of the important witnesses and the CCTV footage. In my view, it was open to her Honour to use the CCTV footage as she did. No error is shown in that regard.
2. Further, I do not accept that r 84 of the Road Rules is in such terms that the mere fact that the collision occurred whilst Mr Mahoney was reversing across the westbound lanes is evidence of negligence on his part. Nor do I accept that Mr Stone should not have been found negligent based on the idea that he was acting in the "agony of the moment". I am not satisfied that her Honour failed to consider relevant evidence or misapplied any legal principle. Her Honour made findings which were open to her.
3. It is correct that her Honour did not specifically identify the reasonable precautions that Mr Stone should have taken and did not make specific findings as to precisely where the vehicles were positioned when each driver saw or should have seen each other but, in my view, the findings made and the reasons provided should not lead to any uncertainty or lack of understanding as to the basis of her Honour's decision.
4. I acknowledge the volume of work undertaken in the Local Court and the difficulties in producing extensive judgments in that regard. All cases must be determined in accordance with law and adequate reasons must be given but this Court should not look too critically at reasons, particularly when there are sufficient reasons for the parties to understand why they have won or lost. I do not accept that the appellants would not be able to comprehend why they lost this motor vehicle recovery action.

Orders

1. In each of the three matters, I make the following orders: 1. The time for filing the summons commencing the appeal is extended. 2. The time for filing the summons seeking leave to appeal is extended. 3. The appeal is dismissed. 4. The plaintiff is to pay the defendant(s)' costs. 5. I grant liberty to apply on 3 days' notice should either party seek to be heard on any different costs order.

Endnotes

1. [2017] NSWCA 311.
2. [2008] NSWCA 144.
3. [2016] NSWCA 72 at [42].
4. Beale at 442.
5. At 441-444.
6. Beale at 444. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2023