Chaplin v Lane
[2014] TASSC 32
•18 June 2014
[2014] TASSC 32
COURT: SUPREME COURT OF TASMANIA
CITATION: Chaplin v Lane [2014] TASSC 32
PARTIES: CHAPLIN, Bradley John
v
LANE, Richard
FILE NO: 163/2014
DELIVERED ON: 18 June 2014
DELIVERED AT: Hobart
HEARING DATE: 20 May 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Traffic Law – Offences – Particular offences – Negligent driving – Other matters – Charge of causing death by negligent driving – Causation – Speeding resulting in motorist being at point where child stepped onto road.
Traffic Act 1925 (Tas), s32(2A).
Mobbs v Kain (2009) 54 MVR 179, followed.
Aust Dig Traffic Law [1105]
REPRESENTATION:
Counsel:
Applicant: C J Gunson, M Goldberg
Respondent: S Nicholson, M J Allen
Solicitors:
Applicant: FitzGerald & Browne
Respondent: Director of Public Prosecutions
Judgment Number: [2014] TASSC 32
Number of paragraphs: 20
Serial No 32/2014
File No 163/2014
BRADLEY JOHN CHAPLIN v RICHARD LANE
REASONS FOR JUDGMENT BLOW CJ
18 June 2014
This is a motion for the review of an order made by a magistrate, Mrs O McTaggart, convicting the applicant, Bradley Chaplin, on a charge of causing death by negligent driving, contrary to s32(2A) of the Traffic Act 1925.
On the afternoon of 29 February 2012 the applicant was driving in an easterly direction along Gordon River Road at Karanja, heading towards Glenora. A school bus had been travelling in the opposite direction, and had stopped to let some children get off. The applicant had been travelling at about 100km/h, but slowed down to about 80km/h. As he passed the bus, a 13-year-old schoolgirl named Ashley Edmonds hurried onto the road from behind the rear of the bus. There was a collision between the applicant's vehicle and the girl. As a result, she died at the scene shortly afterwards.
At the hearing before the learned magistrate, the prosecutor relied on two particulars of negligence, which alleged that the applicant did the following things:
"(a)Drove a motor vehicle at an excessive speed, namely 80km/hr, when you were within 50 metres of a school bus that was stopped and displaying warning signs and flashing amber lights to the front and rear and which school children were alighting or were reasonably expected to be alighting.
(b)Drove a motor vehicle whilst failing to keep a proper lookout."
The learned magistrate rejected the assertion that the applicant had failed to keep a proper lookout, but found the charge proven on the basis that he had caused the death by driving negligently in that he drove his vehicle at an excessive speed as alleged. On the hearing of the motion to review, there was no challenge to the finding that the applicant drove at 80km/h, nor to the finding that he was negligent in driving at such an excessive speed. It was accepted that the girl died as a result of a collision with the vehicle driven by the applicant. However the applicant contends that the learned magistrate erred in concluding that she was satisfied beyond reasonable doubt that there was a causative link between the applicant's negligence and the death of the girl.
Rule 374(1) of the Road Rules 2009 required the applicant to drive at a speed of no greater than 40km/h at the time of the collision. That sub-rule reads as follows:
"(1) A driver must not drive at a speed exceeding 40 kilometres per hour within 50 metres of a bus that is on a road and displaying —
(a)a school bus warning sign; and
(b)a school bus warning light.
Penalty: Fine not exceeding 20 penalty units."
The learned magistrate concluded that the applicant's duty of care required him to drive at a speed no greater than 40km/h but, after considering a number of reported cases, she concluded that he had no duty to drive any more slowly than 40km/h. That conclusion was reasonably open to her, and was not challenged by the respondent in the proceedings before me.
The learned magistrate considered evidence from two witnesses with expertise in accident reconstruction – Sgt Carrick of the Tasmania Police for the prosecution, and a Mr Ruller who gave evidence for the applicant. They gave uncontroversial evidence as to speeds, distances, and drivers' perception-reaction times. On the basis of that evidence, her Honour concluded that, even if the applicant had been travelling at only 40km/h when the child emerged from behind the bus, a collision would have been inevitable, and that the evidence did not establish that the child would have survived a collision at such a speed. Since there was no evidence that travelling at 80km/h rather than 40km/h increased the risk of a fatal accident, it was not open to the learned magistrate to find the charge proved on the basis of the applicant having been negligent by speeding at the time when the girl emerged from behind the bus. However her Honour found the charge proved on a different basis.
Her Honour reasoned that if the applicant had slowed to 40km/h when his vehicle was 50 metres away from the bus, and had travelled at that speed over those 50 metres and when travelling beside the bus, then the girl would have completed her crossing of the road before he reached the rear of the bus, there would have been no collision, and the girl would not have died. She concluded that it followed that the applicant had caused the death of the child by his negligent driving in driving at a speed exceeding 40km/h as from a point 50 metres away from the bus.
Counsel for the applicant argued that that reasoning was erroneous. His contentions can be summarised as follows:
· That the circumstances that resulted in the applicant being at a particular place on the road when the girl emerged from behind the bus were not, in law, part of the causes of death.
· That it had not been proved beyond reasonable doubt that travelling at 80km/h rather than 40km/h increased the risk of a fatal collision.
· That it followed that it had not been proved beyond reasonable doubt that the applicant's negligence in travelling at 80km/h, rather than 40km/h, at any relevant time was a cause of the death of the girl.
Counsel for the respondent contended that there was no error in the learned magistrate's reasoning.
In Mobbs v Kain (2009) 54 MVR 179, the New South Wales Court of Appeal considered reasoning similar to that relied on by the learned magistrate. That case concerned a collision between a vehicle and a schoolboy who had just got off a school bus and hurried onto the road. The vehicle was approaching from the rear of the bus. The boy emerged from a position in front of the bus and collided with the side of the passing vehicle. The primary judge found that the motorist had been negligent. One of the arguments before the Court of Appeal was to the effect that, if the motorist had slowed below 40km/h before reaching and while passing the bus, his vehicle would not have been where it was at the time of the collision, and so the schoolboy would not have collided with the vehicle or been injured. The principal judgment in that case was delivered by McColl JA, with whom Macfarlan JA agreed. At [99], her Honour rejected that argument out of hand, with these words:
"Another submission put forward by Mr Campbell was, in effect, that the second appellant [the motorist] had to travel at a speed (which he did not identify) which meant he would not be where the respondent [the boy] was when he emerged from the front of the bus. The circularity of the reasoning inherent in the latter submission is such that, in my view, it need not be considered further."
Giles JA, who concurred with the orders proposed by McColl JA, addressed the submission in greater detail. At [19] he quoted a passage from Glanville Williams, Joint Torts and Contributory Negligence, Stevens, London, 1951, which concluded with the following paragraph:
"A more frequent illustration as applied to original negligence would be as follows. D is driving a vehicle without keeping a proper lookout. P, driving negligently, collides with him. The facts are such that even if D had been keeping a proper lookout he could not have avoided P, and the accident would have happened just the same. Here D's driving the vehicle is a cause of the accident, for had he not been at that spot at that time the accident would not have happened. But D's negligent failure to keep a proper look-out cannot be assigned as a cause of the accident. Therefore there is no negligence on the part of D causing the accident and an action by P against D must fail, whether before or after the Contributory Negligence Act."
At [20] and [21], his Honour rejected the submission, saying:
"20 Other illustrations were given. The illustration as applied to original negligence, while not identical to the present case, is pertinent. D being at the spot at the time was not in law a cause of the accident. Even if the second appellant had been driving more slowly, the respondent would have collided with the side of his motor vehicle. Driving at 40 kilometres per hour was a 'but for' cause, whereby the second appellant's motor vehicle was where it was. But any negligence in driving at an excessive speed 'cannot be assigned as a cause of the accident'.
21 One may postulate that the second appellant had driven at an unsafe speed fifteen minutes earlier, or had driven contrary to a red light at an intersection a few kilometres before coming up to the bus, and that his motor vehicle would not have been where it was but for the failure to drive reasonably. I do not think it could be suggested that there would be causation in law. Indeed, the second appellant's motor vehicle would not have been where it was had he sped past the bus at 100 kilometres per hour: cf Draxton v Katzmarck (1938) 280 NW 288 (Minn), cited in Hart and Honoré, Causation in the Law, 2nd ed (1985) at 122 in considering the American courts' rejection of causation where the accident would not have happened but for earlier speeding. So in the present case, the fact that the second appellant's motor vehicle would not have been where it was at the time the respondent ran out, had he slowed to below 40 kilometres per hour before reaching and while passing the bus did not, in the present case, make out causation in law."
As far as I know, there are no Tasmanian authorities in relation to this form of reasoning. I must therefore follow the decision of the New South Wales Court of appeal: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [49].
The applicant's negligence in driving at an excessive speed from the time he was 50 metres away from the bus may well have resulted in his vehicle being at the point of impact at the moment of impact, but as a matter of law it was not open to the learned magistrate to make a finding that his negligence was therefore a cause of the death of the girl. That is to say, she erred in law by finding the charge proved on that basis.
Since she was not satisfied beyond reasonable doubt that travelling at 80km/h rather than 40km/h increased the risk of a fatal collision, she was quite right not to find the charge proven simply on the basis of negligence in speeding at the time of the collision. That is clear from a number of reported cases. In Van Der Heuvel v Tucker (2003) 85 SASR 512, a motorist had been negligently driving at an excessive speed when his vehicle's axle failed. Because there was no evidence that the speed increased the risk of the axle failing, the Full Court of the Supreme Court of South Australia held, by majority, that injuries suffered by a passenger were not caused by the negligence of the driver in speeding. In Latham v Fergusson (2006) 46 MVR 412, a motorist was not keeping a proper lookout when a child emerged from behind a sign onto a pedestrian crossing. The New South Wales Court of Appeal held that the driver's negligence in failing to keep a proper lookout did not cause the child's injuries because, if the driver had been keeping a proper lookout, she would have had insufficient time to react and brake so as to avoid impact. In Lyonsv Fletcher [2014] NSWCA 67, a driver was not keeping a proper lookout, and his vehicle collided with a drug-affected jogger who had climbed over a barrier and commenced to cross a busy road. The New South Wales Court of Appeal held that his negligence was not a cause of the pedestrian's injuries since those injuries would not have been avoided if the motorist had been keeping a proper lookout.
At the hearing before the learned magistrate, the prosecutor's strongest argument may well have been that, in the circumstances of this case, the applicant had a duty to travel at a speed well below 40km/h. There was evidence that he knew the area; that he had seen the bus; that its driver was waving to him; that there were no houses on his right hand side of the road where the bus had stopped; that there were houses to his left hand side where the bus had stopped; and that there were no children in view. Slowing almost to a stop would not have delayed the applicant significantly. However, as I have said, it was reasonably open to the learned magistrate to conclude that the applicant's duty of care did not require him to travel more slowly than 40km/h, and her finding to that effect has not been challenged in these proceedings.
Ground 1 of the notice to review asserts that the learned magistrate erred "by finding that the applicant's driving caused, for the purposes of s32(2A) of the Traffic Act 1925, the death of the deceased". Because that finding was based on the sort of reasoning that Mobbs v Kain makes impermissible, that ground must succeed.
There is therefore no need to consider the other grounds of review. The only appropriate course is for me to allow the motion to review, set aside the orders of the learned magistrate, and dismiss the charge in question (count 1 on complaint 7220/12).
There were other charges relating to this tragic incident, including charges of driving without due care and attention, and driving at a speed exceeding 40km/h within 50 metres of a school bus stopped on a road. The learned magistrate found those two charges proven but, after convicting the applicant of causing death by negligent driving, she dismissed them in accordance with the principles discussed in Wood v Major (1992) 3 Tas R 249. I have come to the conclusion that I have no power to set aside the orders dismissing those charges since the motion before me relates only to the charge of causing death by negligent driving, and since the powers of a judge determining a motion to review, as set out in s110(2) of the Justices Act 1959, do not include a power to review an order made in respect of a charge whose review has not been sought.
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