Burke v TRAILL-NASH
[2002] WASCA 152
•20 MARCH 2002
BURKE -v- TRAILL-NASH [2002] WASCA 152
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 152 | |
| Case No: | SJA:1189/2001 | 20 MARCH 2002 | |
| Coram: | PULLIN J | 20/03/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES RAYMOND BURKE ROBERT JOHN TRAILL-NASH |
Catchwords: | Traffic law Offences Careless driving |
Legislation: | Road Traffic Act 1974, s 62 |
Case References: | Garrett v Nicholson (1999) 21 WAR 226 Geneff v Townshend [1970] WAR 20 Lawrance v Johnson, unreported; SCt of WA (Wallace J); Library No 1314; 14 March 1974 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ROBERT JOHN TRAILL-NASH
Respondent
Catchwords:
Traffic law - Offences - Careless driving
Legislation:
Road Traffic Act 1974, s 62
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr J A Bougher
Respondent : Mr C S Bydder
Solicitors:
Appellant : J A Bougher
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Garrett v Nicholson (1999) 21 WAR 226
Geneff v Townshend [1970] WAR 20
Lawrance v Johnson, unreported; SCt of WA (Wallace J); Library No 1314; 14 March 1974
Case(s) also cited:
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
(Page 3)
1 PULLIN J: This is the hearing of an appeal under s 184 of the Justices Act, leaving having been granted by me today. On 11 December 2001, Mr L Roberts SM convicted the appellant on a charge of driving without due care and attention, contrary to s 62 of the Road Traffic Act 1974. The facts in this case are not in dispute.
2 At about 3 pm on the freeway alongside the Royal Perth Golf Course, the appellant was driving a Holden Jackaroo and towing a horse trailer with two horses in it. The appellant was driving with his wife as a passenger. The appellant had been at the Claremont Showgrounds and then started on his journey home to Hopeland. He said that he drove conservatively with the horse float, and that he was travelling just under 60 kilometres per hour, which was the speed limit, because road works were being carried out on the freeway.
3 The Holden Jackaroo weighs about 1.8 tonnes, and the appellant was aware of this. He was also aware of the weight of the horse float, which was 999 kilograms, and the horses weighed 450 and 350 kilograms. The trailer was fitted with brakes, and it seems that the brakes on both the vehicle and the trailer were in good working order. The appellant noticed that there was debris on the road surface, and he knew about this in his journey along the freeway. He said that he made allowance for this in his driving on the day, and that it made him drive more cautiously.
4 It seems that the appellant had towed a horse in a horse trailer before on other occasions and was aware that the horses could move or "surge" within the trailer. Mrs Burke gave evidence that the vehicle was travelling in the stream of traffic about five to six car lengths behind the vehicle in front, and that they were travelling just under 60 kilometres per hour. She also noticed material on the road surface.
5 The Magistrate related the evidence, and he correctly directed himself as to the relevant authorities dealing with careless driving charges. In particular, he referred to Geneff v Townshend [1970] WAR 20,and he noted what was said by Hale J in that case on p 20. At p 21, where His Honour said that the fact that an accident does occur does not prove that a driver has driven without due care and attention. He also referred to Lawrance v Johnson, unreported; SCt of WA (Wallace J); Library No 1314; 14 March 1974, which was the case of a rear-end collision resulting in a careless driving charge. He noted that in that case also, Wallace J mentioned that the fact that an accident had taken place did not mean that there had been a breach of the section.
(Page 4)
6 The Magistrate referred to the fact that Wallace J said that the question to be answered was whether it could be said that the driver had failed to keep a proper lookout or was travelling too fast or too close to the vehicle in front, and referred to the fact that Wallace J had said the question that had to be asked was whether the driver should anticipate a sudden stop of vehicles in front of him.
7 The Magistrate then reached his decision. He found for the appellant in relation to the second limb of the section, that is, whether or not the appellant was driving with due attention. He found that Mr Burke was driving with due attention. He then turned to consider the question of whether or not due care was being exercised. He said in his reasons for decision, after referring to Lawrance's case and the fact that in that case the evidence was not sufficient to convict the appellant there:
"But in my view I come to the opposite conclusion, and I would find as a fact - and I'll set them out shortly - that the defendant in this case should have anticipated a sudden stop of vehicles in front of him, and that he was in my view driving too close and too fast in the circumstances to be able to stop."
8 Then a little further down he said:
"It was in a roadworks area where in my view it could be anticipated that the traffic would stop and stop suddenly. He was travelling at 60 kilometres per hour. And he was travelling in a vehicle - two vehicles with a large amount of weight in them. And that the horses … to use an expression were freewheeling in the float. In other words they were able to move. That's not a criticism that's just a fact. In my view the CV joint doesn't play any part in the ability to brake. It may have affected the course of the steering not the ability to brake. And in my view the defendant should have anticipated that there be a sudden stop of vehicles. So, I find the charge proven."
9 The reference to the CV joint was a reference to the constant velocity joint which was referred to in evidence and mentioned by the appellant as a possible explanation for the accident, but it seems at the end of the case that can be disregarded, because the evidence about the CV joint was based on hearsay evidence about what had been said by a mechanic, and in any event the steering seemed to have played no part in the accident.
(Page 5)
10 The first ground of this appeal is that the Magistrate failed to make a finding that the appellant drove without due care and attention. Now it is true that those words do not appear in the reasons for decision, but in my view a reading of the reasons does indicate that the Magistrate understood what his task was and, having directed himself correctly as to the law, directed his attention to the two limbs of s 62 of the Road Traffic Act. The decision in Garrett v Nicholson (1999) 21 WAR 226 suggests that that is the correct way to approach a set of reasons for decision of a Magistrate.
11 I now turn to the other grounds of appeal. In this case, the appellant was driving in heavy traffic on roads which were undergoing construction work and which were, to the appellant's knowledge, covered at times with loose material in the form of gravel and blue metal. He was driving a heavy vehicle with a trailer load of horses, and he was aware that the horses could move within the vehicle, causing the vehicle he was driving to "surge." He was conscious of all these factors. He considered that he was a sufficient distance behind the vehicle in front to be able to avoid a collision. He was, of course, therefore paying due attention to the circumstances, but the question is whether he was driving with due care.
12 This involves an objective assessment of the circumstances. That question is not to be answered by simply asking what the appellant thought about the standard of his driving. The evidence about the CV joint of his vehicle, which relates to the steering or drive, seems to have been offered as an explanation for the accident when he gave his evidence. He was perhaps implying that without this problem he would have stopped within time, but as I have said this aspect seemed to disappear as a result of the cross-examination and he was really making a comment about what had been said to him by a mechanic.
13 The other explanation given is that the horses surged and moved and that this caused the braking process to take longer than he had anticipated, but in my view, that is something that he should have anticipated, given his experience in driving the vehicle before and his awareness of all of the road conditions. A sudden stop in the heavy traffic was not unexpected, and it did become necessary. Even with the brakes functioning properly, having been applied as soon as it became necessary to do so, the vehicle came into collision with the car in front.
14 In my opinion, the only inference open in those circumstances is that he did not leave enough space between his vehicle and the one in front. It was an error of judgment on his part. The appellant argued that he was confronted by a sudden emergency, but that is not an excuse in the
(Page 6)
- circumstances. A person driving with due care in the circumstances which I have outlined, must drive assuming that a sudden stop may be necessary, and his error of judgment was therefore a lack of care in the circumstances. In my opinion, for those reasons, the appeal should be dismissed.
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