Chatterton v Tasmania
[2024] TASSC 4
•21 February 2024
[2024] TASSC 4
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Chatterton v Tasmania [2024] TASSC 4 |
| PARTIES: | CHATTERTON, Christine Helen |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 2333/2022 |
| DELIVERED ON: | 21 February 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 13 December 2022 |
| JUDGMENT OF: | Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Procedure – Notices of Appeal - Time for appeal and extension thereof – Appeal of conviction and sentence – Where time elapsed between date of conviction and date of sentence – Whether time to be calculated from conviction or finalisation of matter - Practical difficulty arises when parties required to file appeal prior to finalisation – Extension of time allowed.
Aust Dig Criminal Law [3555]
Criminal Law – Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence – Appeal allowed – Convicted by magistrate of two counts of Causing Death by Negligent Driving – Evidence not capable of supporting a finding of negligence – Conviction and sentence set aside and verdict of not guilty recorded.
Aust Dig Criminal Law [3475]
REPRESENTATION:
Counsel:
Appellant: T Cox Respondent: M Wilson SC, E Belonogoff
Solicitors:
Appellant: Dobson Mitchell Allport Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 4 |
| Number of paragraphs: | 53 |
Serial No 4/2024
File No 2333/2022
CHRISTINE HELEN CHATTERTON v STATE OF TASMANIA
| REASONS FOR JUDGMENT | MARTIN AJ 21 February 2024 |
| Introduction |
1 Following a trial, the applicant was convicted by Magistrate Duvnjak of two counts of Causing Death by Negligent Driving. The applicant filed a Motion to Review the decision of the learned magistrate on the following grounds:
"1 The learned Magistrate erred in law at [34-35] of her reasons for decision: a in failing to consider the question of breach of duty prospectively,
b in concluding with the benefit of hindsight that 'the brakes (sic: wheels) would not have locked without such force being applied which was excessive in all the circumstances'. 2 The learned Magistrate erred in fact and in law in failing to consider all reasonable possibilities inconsistent with a finding of negligence or alternatively failing to apply the requisite standard of proof in circumstances where:
a there was no evidence of the degree of force applied by the defendant; b there was no evidence of the degree of brake force required to lock
the wheels; andc there was no evidence as to what a reasonable or excessive amount of
brake force was to the brakes.[For the avoidance of doubt Ground 2 engages the questions of breach of duty and causation. For instance, no evidence of the force applied to the breaks informs breach of duty, no evidence of the force required for the wheels to lock informs breach of duty and causation, and no evidence as to what a reasonable or excessive amount of brake force is informs causation]."
2 The application first came before this Court on 13 December 2022 when Geason J heard oral submissions from the parties. At the conclusion of those submissions, his Honour reserved his decision.
3 Geason J is currently not sitting to hear matters or to deal with matters in which he reserved his decision. It appears this situation is unlikely to be resolved in the foreseeable future. In the particular circumstances, the parties requested that the Court reallocate the hearing of this matter to another judge. The parties did not seek to present further oral or written submissions and requested that the matter be determined by another judge having regard to the written material, including the transcript of submissions presented before Geason J on 13 December 2022.
4 It is in these circumstances that I have considered all relevant material relating to the
application.
5 For the reasons that follow, I would allow the application for review.
2 No 4/2024
Jurisdiction
6 The magistrate delivered reasons on 17 June 2022 in which she found that both charges had been proved. However, it was not until 12 August 2022 that her Honour recorded convictions and imposed sentence. The applicant filed the Notice to Review on 1 September 2022.
7 The respondent contended that the Notice of Review was not validly initiated and, therefore, this Court has no jurisdiction to determine the matter. In essence, the respondent submitted that the order sought to be reviewed was made on 17 June 2022 when the magistrate delivered reasons and found both charges proven. As s 107(3) of the Justices Act 1959 provides that an applicant seeking review must file a Notice of Review in the Supreme Court within 21 days of the making of the "order", the respondent contended the Notice was filed by the applicant out of time.
8 Section 107(1) of the Justices Act provides that a person who is aggrieved by "an order" may move the Supreme Court to review the order. For these purposes, s 116 of the Justices Act provides that "order includes conviction, dismissal of a complaint, determination, and adjudication." On its face, the wording of s 116 is wide enough to encompass the finding by the magistrate on 17 June 2022 that both charges were proved. This provides support for the respondent's contention that time began to run on 17 June 2022.
9 On the other hand, from a practical point of view, it would be surprising if the legislature intended to force the hand of a person in the position of the applicant by requiring that the Notice of Review be filed before finalisation of the proceedings. For example, a decision as to whether a conviction will be recorded, and the imposition of sentence, are factors likely, in many cases, to be significant factors influencing a decision whether to seek a review.
10 Subject to reviews of interlocutory orders, the review scheme is intended to facilitate reviews after finalisation of proceedings before the lower court. Finalisation does not occur until orders are made as to conviction or otherwise and penalty.
11 In the particular circumstances accompanying these proceedings, this appeal is not the appropriate vehicle for determination of these issues. Full written and oral submissions would be required. For present purposes, it is sufficient for me to observe that to the extent necessary I would not hesitate to extend the time for filing of the Notice of Review. To cover the possibility that the respondent's submission is correct, I extend the time for filing the Notice of Review to 2 September 2022.
| Facts | |
| 12 | The primary facts are not in dispute. At approximately 8.35am on 13 August 2020 the applicant was driving a bus north on Algona Road at Kingston. As the bus entered a sweeping right hand bend, faced with traffic ahead banking up, the applicant applied the brakes causing the wheels to lock and skid. The bus rotated clockwise and crossed into the southbound lane colliding with the driver's side of a southbound car killing the driver and a passenger. |
| 13 | Based on unchallenged expert evidence, the magistrate found that immediately before the application of the brakes, the bus was travelling in a 90 km/h zone at a speed of approximately 81-87 km/h, a speed which was reduced by the time of impact to between 37-54 km/h. The magistrate also accepted evidence that it was likely the bus took approximately 1.9-2.3 seconds to skid to the point of impact. In addition, her Honour found that the stopping distance for the bus "using a perception and reaction time for the driver of between 0.8-2.2 seconds was likely to be between approximately 70m and 114m." |
3 No 4/2024
14 The sight distance through the sweeping right hand bend was approximately 170m. The applicant was an experienced bus driver. Although the applicant had previously driven the bus, she told police in a subsequent interview that she did not understand that when a wheel of the bus locked, there was no ability to steer the vehicle.[1]
[1] The bus was manufactured in 1998 and was not fitted with an ABS braking system meaning that if the wheels locked
15 In her interview with police on 17 August 2020, the applicant made the following statements:
•
Prior to the accident, the applicant had driven the bus on a school run, but she had dropped the students at school before the accident.
•
The weather and visibility were clear and she was familiar with the road in the area of the accident.
• The speed limit was 90 km/h and she thought she was travelling at about 70 km/h. •
As she was travelling along, there were cars a reasonable distance in front, perhaps "a few hundred metres", and she observed the brake lights of the nearest car in front. The applicant was asked about the distance:
"Q: And so, what distance do you think they would have been away when
you first observed them.A: I don't know, a few hundred metres? Q: Two hundred? A: Yeah. That's difficult. Q: Okay. A: I would have thought … ? Q: (inaudible) A: … within reasonable braking distance for a bus. Q:
Alright, um, and so you say you though reasonable braking distance, so when you first saw the cars, you didn't think that you needed to do anything crazy and apply real harsh emergency braking.
A: No, no I think … Q: Was there any fear you were going to run into the back of them. A: No, I think I ought, oh, I yeah, I think I did brake reasonably hard. But I,
no, didn't think I was going to run into the back of them.Q:
Okay, so, when you first observed the cars out there in front of you, at 200 odd metres, you believed at that point that you had enough time to safely stop.
A: Yep. Q: And your attention was drawn to these cars because they had their brake
lights on.4 No 4/2024
A:
The brake lights on the car that was the one right in front of me was bright red. Like, it was obviously, um, you know, like some of them can be dull. But this one was really bright.
Q: So when you first saw these vehicles in front with the brake lights on ah,
what was your first reaction.A: I put the brakes on. Q: Okay. And what was your intention when you applied the brakes. What,
were you intending …A: …to. Q: To do. A: To stop."
• Prior to the accident, the applicant had not experienced any issues with the brakes. • In comparison with braking earlier in the journey, she would have braked "harder" at the crash. • She thought she had time to stop safely. • Her last memory was of seeing the brake lights of the car ahead and applying the brakes. Her next recall was of being in the stairwell of the bus. 16 The magistrate correctly found that the bus should have been able to stop safely prior to reaching the stationary vehicles travelling north in front of the bus. Her Honour also correctly found that there was "no need for the defendant to apply emergency braking when she came around the sweeping bend in order to safely stop the bus".
17 There is no dispute that it was the act of braking which caused the wheels of the bus to lock up and the bus to skid. This was the effect of uncontested expert evidence and the magistrate found accordingly. The critical question is whether there is evidence to support the finding of the magistrate that the brakes would not have locked without the application of force which was "excessive" in all the circumstances.
Expert evidence
18 The magistrate relied heavily upon the evidence of an expert, Mr Wayne Rice, who was a Safety and Compliance Officer with the National Heavy Vehicle Regulator. The magistrate summarised the substance of the evidence given by Mr Rice, including his ultimate opinion, and proceeded to make the critical findings:
"32
Mr Rice is a safety and compliance officer with the National Heavy Vehicle Regulator. He is a qualified automotive mechanic with over 30 years' experience in the automotive industry. He attended the accident scene and performed an initial road worthy inspection of the bus and later inspected the bus when it had been moved to another location. The report he prepared formed part of the agreed papers before the Court as did his supplementary proof. Mr Rice also gave evidence at the hearing of the complaint. His evidence was that the brakes were in good condition. His examination of the brakes revealed the brakes were fully adjusted to industry standards. His evidence was that it was not possible to tell how sensitive the brakes were in the bus and that it was not possible to measure what was a 'reasonable' amount of braking force
5 No 4/2024
to prevent the bus wheels from locking when pressure was applied to
them.33 He noted that due to the age of the bus, it was not fitted with an anti-lock braking system and that if an emergency application of the brakes was initiated there is not a system fitted to the bus that would prevent the wheels from locking. The locking action once triggered will only release when the brake pedal pressure is reduced significantly.
34 It was his evidence that it was likely that the fact of emergency braking caused the wheels of the bus to lock up. As such, the defendant applying pressure to the brake pedal caused the wheels of the vehicle to lock and slide. His evidence was that the only way the bus would lock up, other than emergency or excessive braking, would be due to the driver applying the park brake or as a result of a major loss of air to the rear brakes. His evidence was that there was no indication of loss of air or that the defendant applied the park brake any time prior to the collision.
35 Accepting the evidence of Mr Rice, the only way the wheels of the bus would have locked up in this case was due to the braking force applied by the defendant to the brake pedal of the bus. The brakes would not have locked without such force being applied which was excessive in all the circumstances. No other explanation for the locking of the wheels is available on the evidence. From the evidence I am satisfied that it is open to me to, and I should infer, that the application of pressure to the brakes of the bus applied by the defendant prior to the collision, caused the wheels of the bus to lock, which in turn caused the bus to skid. That application of force was excessive. The CCTV footage from the bus at the time of braking does depict the defendant applying considerable pressure to the brake. The defendant's act of excessive braking cannot, in my view, be characterised as mere inadvertence or misjudgement. Nor can it be said that in applying that brake pressure she was acting in the agony of the moment.
36 I am satisfied that in applying excessive brake pressure the defendant fell below the required standard of care of a reasonable and prudent driver, and a breach of the required duty is made out. A reasonable and prudent driver would have applied less brake force in circumstances where there was enough time and distance to brake more slowly. Particular c) with respect to both charges is established."
Contentions
19 In summary, the applicant advanced the following contentions:
•
The magistrate "erred in law in applying the benefit of hindsight in the assessment of whether the appellant had breached her duty of care".
•
While the evidence was capable of supporting a finding that "the only way the wheels of the bus would have locked up in this case was due to the braking force applied", it was an error for the magistrate to conclude that the brakes would not have locked unless the force applied was "excessive" in all the circumstances.
• There was no evidence as to the amount of force applied by the applicant to the brake pedal. • There was no evidence as to the amount of force required to cause the wheels to lock. •
There was no evidence to support a finding as to the degree of force which would have been a reasonable amount of force to apply to the brakes in the circumstances.
6 No 4/2024
• The evidence proved only that the applicant applied the brakes with an unknown degree of force which caused the wheels to lock. • Viewing the evidence prospectively, it was not possible for the magistrate to be satisfied beyond reasonable doubt that the force applied by the applicant was "excessive". • The evidence relied upon by the Crown was circumstantial in nature. The magistrate erred in failing to consider a reasonable hypothesis consistent with innocence. • The evidence did not exclude, as a reasonable possibility, that the applicant "applied a degree of force within the range of what a reasonable prudent driver would have applied in the circumstances to bring the bus to a stop but, nevertheless, the wheels locked …". This possibility was not appropriately considered by the magistrate. • The learned magistrate erred in concluding that "no other explanation for the locking of the wheels is available on the evidence" other than the application of "excessive" force to the brake pedal. 20 In summary, the respondent advanced the following propositions:
•
The magistrate correctly identified that a prospective enquiry was required in determining negligence.
•
"The undisputed evidence was that the bus should have been able to come to a safe stop prior to reaching the stationary vehicles travelling in front of it, without the need for emergency or harsh braking."
•
The applicant admitted to applying the brakes "reasonably hard" and accepted that the application was harder than at any other time on her journey that day. The CCTV footage "showed the applicant applying 'considerable pressure' to the brake".
•
Senior Constable Hall and Mr Rice gave evidence that the applicant applied the brakes "excessively" and "harshly".
•
In response to a question by the magistrate concerning agreed facts including the contents of reports, it was agreed that the contents of reports amounted to agreed facts, subject to the applicant's counsel identifying a "caveat" that to the extent that the experts expressed an opinion "about the brake pressure and the like, that's not accepted." Notwithstanding the expressed caveat, the applicant declined the opportunity to cross-examine or challenge the opinions of Mr Rice.
•
The magistrate approached the question of negligence prospectively, "finding that a reasonable and prudent driver would have applied less brake force in the particular circumstances that included enough time and distance to safely brake more slowly, and an appreciable risk of the wheels locking when driving a vehicle without ABS."
•
The standards of "excessive" and "reasonableness" cannot be measured or defined with accuracy. "Rather, like all concepts of reasonableness, the learned magistrate is to use their understanding of driving as part of common experience to determine the standard of the reasonable and prudent driver in the particular case."
•
"It was sufficient for her Honour to find that a reasonable and prudent driver would have applied less brake force in the circumstances."
•
The magistrate "appropriately considered and excluded all reasonable possibilities consistent with innocence and applied the requisite standard of proof."
7 No 4/2024
•
"The applicant suggests that the learned magistrate never considered the possibility that the degree of force [the driver] applied was within the range of a reasonable and prudent driver. The applicant further submits that there was no evidence to negate that possibility. … These submissions fail to appreciate the considerations the learned magistrate undertook to find the applicant fell below the standard."
•
"Despite holding a clear appreciation for the possibility that the applicant was acting in accordance with the standard of a reasonable and prudent driver irrespective of the harm caused, the learned magistrate still found negligence", and "there was sufficient evidence, almost all of which was unchallenged, for her Honour to be satisfied beyond reasonable doubt that the applicant's braking was excessive in all the circumstances, and exclude all reasonable possibilities consistent with innocence."
Discussion
21 The particulars of negligence relied upon by the prosecution were as follows:
"(a) Drove at an excessive speed. (b) Failed to maintain a safe distance. (c) Applied excessive brake pressure. (d) Failed to take all reasonable precautions to avoid a collision."
22 The magistrate referred to the prosecution case that the applicant applied excessive brake pressure causing the wheels of the bus to lock, and summarised the prosecution submission in the following terms:
"19
The prosecution submitted that, a reasonable and prudent driver would have exercised a higher degree of care than that exercised by the defendant in the same circumstances in that a reasonable and prudent driver would have:
(a)
Kept a greater lookout due to the presence of a greater number of vehicles on the road to the time of day and its character as a main thoroughfare;
(b)
Slowed to a lower speed in response to the brake lights on the task ahead. Speed maybe lessens the image of the area given the size and weight of the bus and the great time it requires to come to a stop in response to upcoming hazards;
(c)
Applied a greater level of caution when driving a vehicle unfamiliar to them, including keeping greater distance between the vehicle and others and breaking slowly at an early opportunity when the cars ahead had activated the brake lights to allow both a safe distance between her vehicle and the cars ahead and also the opportunity for cars behind her to break appropriately;
(d)
Applied this brake force in circumstances where there was enough time and distance to break more slowly and where it is widely known braking harshly in the vehicle without ABS may cause the wheels to lock in the driver to lose control of the steering;
(e)
Pumped the brakes (that is repeatedly applying and releasing the brakes) to regain control of the steering of the vehicle in circumstances where the wheels had locked."
8 No 4/2024
23 As to the particulars relied upon by the Crown, set out in par [21] of these reasons, after finding that "in applying excessive brake pressure the defendant fell below the required standard of care of a reasonable and prudent driver", her Honour found the prosecution had not proved that the applicant drove at an excessive speed or failed to maintain a safe distance. Her Honour concluded particulars (a) and (b) were not made out. Similarly, her Honour found she was not satisfied that the applicant had failed to take all reasonable steps to avoid a collision and particular (d) was not made out.
24 In substance, therefore, in finding the applicant guilty the magistrate found that only particular (c) had been made out. Although her Honour found it was not possible to measure a "reasonable" amount of braking force which would "prevent the bus wheels from locking when pressure was applied to them" [32], after referring to the evidence of Mr Rice that it was "likely that the fact of emergency braking caused the wheels of the bus to lock up", and that "the brakes would not have locked without such force being applied which was excessive in all the circumstances", the magistrate found that the excessive braking could not be characterised as "mere inadvertence or misjudgement". Her Honour was satisfied that "in applying excessive brake pressure the defendant fell below the required standard of care of a reasonable and prudent driver". In her Honour's view [36]: "A reasonable and prudent driver would have applied less brake force in circumstances where there was enough time and distance to brake more slowly".
25 At the heart of the magistrate's finding was acceptance of the evidence of Mr Rice that the brakes would not have locked without "excessive" force being applied. This finding was made notwithstanding the absence of any evidence to identify the degree of force required to cause the wheels to lock, and in the absence of evidence establishing the degree of force applied by the applicant.
26 At the outset of the hearing before the magistrate, counsel for the prosecution published agreed facts which included the evidence of Mr Rice concerning his examination of the bus. The report of Mr Rice, and his supplementary proof, together with a report by a crash investigator Senior Constable Adam Hall, were specifically accepted as included in the agreed facts. The magistrate asked if it was intended that the agreed facts "stretch" to those reports being accepted as correct. Both counsel responded in the affirmative to the question, but counsel for the applicant added a ryder: "I should say there's one caveat just to the extent the expert's expressing the opinion about the brake pressure and the like, that's not accepted. But that's more in the matter of a submission anyway".
27 Mr Hall is an experienced crash investigator. He carried out a detailed investigation and, through his report, gave uncontroversial evidence about a number of features associates with the accident including speeds, skid marks and the likely movements of the bus. However, in his conclusion, Mr Hall expressed two opinions which were not admissible:
(i) "The driver of the Hino … applied the brakes of the vehicle believing she had sufficient time and distance to stop safely. However, she applied excessive brake pressure causing all wheels on the vehicle to lock and slide."
(ii) "I have determined the cause of the collision was the result of the Hino driver applying excessive brake pressure, resulting in all wheels of the vehicle locking."
28 The opinion of Mr Hall that the applicant applied "excessive" brake pressure was inadmissible. He was not qualified to give such an opinion and, in any event, whether the pressure applied was excessive was the ultimate question for the magistrate. Mr Hall was perfectly entitled to express the opinion that it was the application of the brake that caused the wheels to lock, but not to express a view as to whether, in all the circumstances, the application of the amount of pressure applied was "excessive".
9 No 4/2024
29 During oral evidence, Mr Hall was asked to summarise his opinion as to the cause of the
collision:
"Well, there were no defects found with the bus. It passed all its brake inspections. I think the locking of the brakes on the bus was a contributing factor, along with the camber of the road which falls to the right hand side which has resulted in the bus rotating. The impact with the Lexus has obviously assisted with that rotation, has probably become more or increased more after that crash. I determined that there was sufficient time to safely stop the bus with both a long and slow perception reaction time without applying emergency brakes and stopping safely without an impact occurring." (My emphasis.)
30 During cross-examination, Mr Hall was taken to the passage to which I have referred in which he said the cause of the collision was the application of excessive brake pressure resulting in the wheels of the vehicle locking. The general tenor of the cross-examination was to suggest that a number of factors were at play and there was insufficient material to enable a conclusion to be drawn with respect to the pressure. Mr Hall agreed that the reason that he included the word "excessive" was twofold. First, because the brakes locked. Second, because in the CCTV he saw the driver's right leg move in the act of braking. Mr Hall agreed that, in itself, the movement observed on the CCTV does not assist in calculating the degree of force applied to the brake.
31 The report of Mr Rice established that there were no defects in the bus contributing to the accident and that the brakes had been appropriately adjusted. In his supplementary proof, Mr Rice said it was not possible to tell "how sensitive the brakes were in the bus" and, significantly, "it is not possible" to measure the "reasonable" amount of force which could be applied without causing the wheels to lock.
32 In his supplementary proof, Mr Rice expressed the following opinion:
"It is likely that it was the fact of emergency braking that caused the wheels to lock
up."
33 Counsel for the applicant did not cross-examine Mr Rice. No attempt was made to elicit an explanation from Mr Rice as to what he meant by "emergency braking". Nor did he venture an opinion as to the degree of force required to amount to "emergency braking".
34 Other than the fact that the wheels locked, there was nothing in the evidence pointing in the direction of emergency braking. In particular, neither the CCTV of the applicant applying the brakes, nor statements made by the applicant in her interview, provided a basis for such a view.
35 In her reasons, the magistrate stated that it was the evidence of Mr Rice "that the only way the bus would lock up, other than emergency or excessive braking, would be due to the driver applying the park brake or as a result of a major loss of air to the rear brakes." In his supplementary proof however, Mr Rice said the only way the wheels would lock up "other than from braking" would be the application of the park brake or a major loss of air. He did not say that other than the park brake or major loss of air, the only way the wheels would lock up would be "emergency or excessive braking."
36 It appears that the magistrate drew from the evidence of Mr Rice an opinion that the brakes would not have locked unless the force being applied was "excessive in all the circumstances". In any event, relying on the evidence of Mr Rice, her Honour reached that conclusion, and found that "no other explanation for the locking of the wheels is available on the evidence."
37 Missing from the evidence of Mr Rice is an explanation of the basis on which he concluded that the wheels would not have locked unless the force applied was "excessive". It appears likely that Mr Rice engaged in hindsight reasoning to reach this conclusion, that is, reasoning from the fact of the wheels locking to a conclusion that the application of force must have been "excessive". The standard
10 No 4/2024
applied by Mr Rice against which he assessed the braking as "emergency" or "excessive" is not
apparent.38 There is no doubt that the application of the brakes caused the wheels to lock. However, there was no evidence as to the amount of brake pedal force required to lock the wheels. In other words, there was no evidence as to the minimum amount of pedal force the applicant must have applied. All that was known was the amount of force applied by the applicant caused the wheels to lock. It does not automatically follow, however, that the force applied was "excessive" such that the application of the pedal force amounted to negligent driving.
39 The magistrate correctly described the standard of care to be applied as that of a "reasonable and prudent driver" and observed that hindsight reasoning was not permitted. Her Honour accepted the submission of the prosecution "that a prospective enquiry requires an appreciation of foreseeable risks and the degree of care expected of a reasonable and prudent driver in response to that foreseeable risk". Her Honour specifically stated that it must be proved that the manner of the applicant's driving fell below the standard of a reasonable and prudent driver, the test being an objective test.
40 The magistrate correctly stated it was not necessary that the ordinary prudent driver take all steps which could have avoided the accident. Her Honour added, "a prospective enquiry must look forward to identify what a reasonable person would have done in all the circumstances."
41 In essence, the magistrate found:
• That the force applied to the brake was excessive; and • "A reasonable and prudent driver would have applied less brake force in circumstances where there was enough time and distance to brake more slowly." • "In applying excessive brake pressure the defendant fell below the required standard of care of a reasonable and prudent driver." 42 Notwithstanding the correct statements of principle to which I have referred, in the absence of evidence identifying the degree of pedal force applied by the applicant and the force required to lock the wheels, it is difficult to avoid the conclusion that her Honour slipped into applying reasoning akin to res ipsa loquitur. In the circumstances under consideration, it is not easy to avoid hindsight reasoning that because the wheels locked up, the force applied to the brake pedal must have been "excessive", and must have been a degree of force that a reasonable and prudent driver would not have applied. Slipping into this type of reasoning overlooks the absence of evidence as to the amount of force applied by the applicant, and as to the minimum amount of force required to cause the wheels to lock.
43 The duty resting on the applicant was to manage the bus "with the same degree of care as an ordinary prudent [person] would deem necessary in the circumstances presented to [them]". The standard is not that of an "exceptionally careful" person, but the standard of the "average" person "who has regard for the safety and rights of others".[2]
[2] Robertson v Watts (1964) 14 Tas R 18 at 23 [13] citing Wintulich v Lenthall [1932] SASR 60 at 63.44 As acknowledged by the magistrate, the enquiry as to whether the applicant's management of the bus was negligent requires a prospective approach. In the passage earlier cited, her Honour noted that a prospective enquiry "requires an appreciation of foreseeable risks and the degree of care expected of a reasonable and prudent driver in response to that foreseeable risk" [15]. Hindsight must be avoided.
11 No 4/2024
45 In Brown v Baker [2001] TASSC 113, Cox CJ explained the difference between criminal and civil cases and the drawing of inferences as to negligence:
"[7] 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. … 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. … 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." (Authorities omitted.)
46 The circumstances under consideration did not involve facts "so strong" that the only inference open was an inference of negligence in applying force to the brake pedal. In addition, the magistrate found, for example, that the evidence did not support a finding of excessive speed or failing to maintain a safe distance or failure to take all reasonable precautions to avoid a collision.
47 In these circumstances I agree with the thrust of the applicant's submissions. In addition, in my view, the following discussion exposes a fundamental flaw in the prosecution case.
48 Bearing in mind that the prospective enquiry requires "an appreciation of foreseeable risks", it is at this first step that the prosecution encounters an insurmountable hurdle. The foreseeable risk underlying the prosecution case was the risk of the wheels locking under braking. In written submissions cited earlier, the respondent spoke of "an appreciable risk of the wheels locking when driving a vehicle without ABS."
49 If the bus had been fitted with an ABS braking system, the wheels would not have locked. The bus was manufactured in 1998, but was not fitted with ABS. No evidence was led as to when the fitting of ABS systems in buses became a regular feature, but it is common knowledge that ABS systems were being fitted to motor vehicles many years before 1998.
50 From the perspective of the applicant, and the reasonably prudent driver, the applicant was driving a relatively modern bus provided by a company which serviced a school run. The applicant was not informed that the bus was not fitted with ABS. There was no occasion for her to make such an enquiry. In my view, a reasonably prudent driver would not have made such an enquiry.
51 I venture to suggest that in the 2020's the number of drivers who have experienced driving without ABS is rapidly dwindling. Relatively few would have experienced the locking of wheels through braking. Today, drivers routinely apply heavy force to the brake pedal without giving thought to the possibility of the wheels locking, thereby removing the capacity to steer the vehicle.
52 There is no evidence from which a conclusion can reasonably be drawn that, placed in the position of the applicant, a reasonably prudent driver would have appreciated that the bus was not fitted with ABS or that there existed a risk of the wheels locking under the pressure of braking. There is no evidence that such a risk was reasonably foreseeable. From the perspective of the reasonable and prudent driver of the bus, there was simply no occasion to suspect or foresee the possibility of the wheels locking under braking. In particular, there is no basis for a finding that, appreciating a risk of locking, the reasonable and prudent driver would have applied less force than the force applied by the applicant. The mere fact that the wheels locked does not prove that the force applied was "excessive" in the sense of being a degree of force that a reasonable and prudent driver would not have applied, recognising that the application of such force might create a risk that the wheels would lock.
12 No 4/2024
53 For these reasons, the application is allowed and the conviction and sentence are set aside. I record a verdict of not guilty.
the bus could not be steered.
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