Brown v Baker

[2001] TASSC 113

[2001] TASSC 113

CITATION:              Brown v Baker [2001] TASSC 113

PARTIES:  BROWN, Graeme Maxwell
  v
  BAKER, Stephen David

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 18/2001
DELIVERED ON:  12 September 2001
DELIVERED AT:  Hobart
HEARING DATE:  25 June 2001
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  T J Ellis  SC
           Respondent:  B J Morgan
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Julian Whayman

Judgment  Number:  [2001] TASSC 113
Number of paragraphs:  8

Serial No 113/2001

File No LCA 18/2001

GRAEME MAXWELL BROWN v STEPHEN DAVID BAKER

REASONS FOR JUDGMENT  COX CJ

12 September 2001

1. Notice to review the dismissal of a complaint of negligent driving on the basis that there was no case to answer.

1. On 8 August 1999, the respondent was driving a four wheel drive Landcruiser towing a boat on a trailer.  He was proceeding south on the Midlands Highway through St Peter's Pass.  A number of vehicles were ahead of him, the convoy being led by a prime mover towing a 42 ft long container trailer carrying a load of vegetables.  Behind that vehicle was a car towing a horse trailer and that vehicle was followed by another car.  As the road winds south up a slight incline, it widens to admit an overtaking lane which continues over the brow of the hill and then descends towards the township of Oatlands.  At the southern end of this hill, the left hand lane peters out and the south bound section of highway is reduced to a single lane.  Some distance short of the brow of the hill, the respondent drew out into the overtaking lane and proceeded past the vehicles ahead of it and drew abreast of the freight container.  On the evidence of the driver of that vehicle, Mr McGrath, it then overtook him, remaining in the right hand or overtaking lane and gaining a position whereby the rear of the boat was ahead of the prime mover.  Mr McGrath said that once the respondent's vehicle and trailer had got clear of the prime mover, he noticed that the trailer carrying the boat started to "fishtail".  This oscillation grew more pronounced, the respondent's vehicle veered on to the incorrect side of the road and a collision occurred with a north bound sedan, killing two of its occupants. 

1. The weather was overcast and a conclusion that it was drizzling with rain at the time and that the surface of the road was wet was consistent with the evidence of several witnesses.

1. The prosecution case against the respondent was that he failed to keep his vehicle and trailer under proper control and that he drove at an excessive speed under all the circumstances and conditions prevailing at the time.  Other particulars of negligence such as failing to keep to the left of the centre of the highway, crossing double white lines and failing to manoeuvre so as to avoid a collision were merely descriptive of circumstances occurring after his trailer began fishtailing and control was lost by him.  The crucial question was whether the evidence presented by the prosecution was capable of justifying a finding beyond reasonable doubt that this loss of control was due to negligence on the respondent's part in driving at the speed he did immediately prior to the collision.

1. Several eye witnesses gave evidence and varying estimates of the respondent's speed were given.  It suffices to refer to Mr McGrath's evidence.  He said that when his vehicle was at the brow of the hill prior to its descent towards Oatlands and before the front of the vehicle had drawn level with his cabin, his speed was 95 kilometres per hour.  He claimed to have observed the speedometer of his vehicle at that time and took the speed from that.  Obviously the speed of the respondent's vehicle was in excess of that if it managed to completely overtake Mr McGrath's vehicle without the latter slowing down.  Mr McGrath denied slowing down and when pressed in cross-examination, conceded that his vehicle on the down hill side of the brow had gained about 5 kilometres per hour in speed.  The cross-examination was apparently intended to suggest that Mr McGrath contributed to the happening of the accident by increasing his speed and rendering it more difficult for the respondent to overtake him before the overtaking lane merged into a single lane.  Mr McGrath denied any such intention.  Whatever the object, the inference to be drawn from the answers in cross-examination was that as the respondent's vehicle overtook the freight container and prime mover and proceeded down hill, it did so at a speed considerably in excess of 100 kilometres per hour on a wet road.  It was in these circumstances that the fishtailing occurred and that the respondent lost control of his vehicle and trailer with the tragic consequences I have adverted to.

1. The learned magistrate upheld a submission that there was no case to answer.  In respect of speed, he held that "the only reasonable conclusion that a jury could draw is that the defendant may have been travelling at the material times at a little over a hundred kilometres per hour".  He said that whether it was 101 kilometres per hour or 105 kilometres per hour did not matter.  "The speed of a little over a hundred is under the overall speed limit prevailing in that area and the prosecution have made not the slightest attempt to rely upon any other speed limit in the presentation of their case, whether or not one exists."  He remarked that there was no evidence which would enable him to determine "whether or not the speed a little over a hundred [kilometres per hour] is an unsafe speed for the driver of an almost new Landcruiser to tow a trailer like this in good condition down hill, possibly in the wet".  He also remarked on the absence of any expert evidence as to the nature of trailer oscillation, leaving him ignorant of its dynamics, the forces which cause it and the ability of the driver to control it. 

1. The maxim res ipsa loquitur, while a convenient tag for the process whereby in civil cases inferences of negligence can be drawn on the balance of probabilities from the fact of an untoward happening has no application to a criminal prosecution (Ex parte Musgrove; Re Howard [1960] NSWR 819). The mere fact that a driver leaves the road or crosses to the wrong side of it and collides with another vehicle being properly driven cannot justify the drawing of an inference that such an event was necessarily caused by negligent driving (Waldie v Cook (1988) 91 FLR 413). Although the maxim is not applicable, the facts may be so strong that the only inference is that there has been careless driving unless and until something is suggested by a defendant by way of explanation (Police v Chappell [1974] 1 NZLR 225; Taylor v Rodgers (1960) 124 JP 217).  Where, as here, there is evidence of an intentional act of driving of a vehicle and trailer on a wet road at a speed in excess of 100 kilometres per hour and no explanation is advanced for a collision which occurs on the other side of the road, it is my view that a properly instructed jury or other tribunal of fact could be satisfied to the requisite degree that it was negligent to do so in those circumstances.  Whether or not a speed limit imposed by the traffic authorities has been exceeded is not to the point.  Nor is it to the point that other vehicles, whether towing a trailer or not, succeeded without mishap in executing such a manoeuvre as that attempted by the respondent.  It was not incumbent on the prosecution to call evidence as to the dynamics of fishtailing.

1. In my view, the learned magistrate was in error in concluding that the prosecution had failed to establish a prima facie case of negligence.  The appeal must be upheld, the dismissal of the complaint set aside and the case remitted for further hearing by the magistrate.