Commonwealth of Australia v Winter, T
[1993] FCA 219
•15 APRIL 1993
Re: COMMONWEALTH OF AUSTRALIA
And: TREVOR WINTER
No. ACTG84 of 1992
FED No. 219
Number of pages - 6
Negligence
(1993) Aust Torts Reports 81-212
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Wilcox(1) and Heerey(1) JJ
CATCHWORDS
Negligence - motor vehicle accident - "error of judgment" not conclusive of negligence or no negligence.
Motor Traffic Act 1936, s.172
Whitehouse v Carlton (1980) 1 All ER 650 (CA) and (1911) 1 All ER 267 (HL)
HEARING
CANBERRA, 30 March 1993
#DATE 15:4:1993
Counsel for Appellant: Mr I. Curlewis QC and Ms A.M. Barby
Solicitors for Appellant: Australian Government Solicitor
Counsel for Respondent: Mr F.J. Purnell
Solicitors for Respondent: Messrs Gallens Crowley and Chamberlain
ORDER
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs, including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
GALLOP, WILCOX AND HEEREY JJ The respondent suffered severe injuries when a motor cycle he was riding collided with a police car on the eastern carriageway of Haydon Drive, Belconnen, on 7 August 1986. The trial judge (Higgins J) found that the driver of the police car, Sergeant (then Constable) Philip Bradley Newton of the Australian Federal Police, was negligent. His Honour assessed damages at $151,468.02 but reduced that figure by 80 per cent on account of the respondent's contributory negligence, with the consequence that judgment was entered for the respondent in the sum of $30,293.61. A cross claim by the appellant for damages to the police vehicle resulted in a judgment in its favour for $2,460.88.
Prior to the collision the respondent had been riding at very high speed, some 150 km/h. He failed to obey police directions for him to stop his vehicle, contrary to s.173 of the Motor Traffic Act 1936, and was also riding whilst his driving licence was cancelled. At the trial the appellant raised the defence that the respondent's unlawful activities immediately prior to the collision had the consequence that no duty of care was owed to him. After a thorough review of the authorities his Honour rejected that contention. That conclusion is not challenged before us, nor is there any attack on his Honour's assessment of damages. What the appellant says on this appeal is that the finding that Sergeant Newton was negligent was not supported by the evidence and that there was no more than an error of judgment on his part. The reasoning on which the appellant's counsel focussed his attack is to be found in the following passage from his Honour's judgment:
"Clearly, the injury to the plaintiff arose out of and in the course of the commission by him of serious criminal offences. The collision occurred, in my view, whilst the plaintiff was seeking to evade police capture. I accept that the collision was a result of Sergeant Newton's vehicle crossing his path, albeit that Sergeant Newton had intended merely to confront the plaintiff with a choice of ceasing his criminal flight or colliding with his vehicle. He did not set out to cause a collision. However, events occurred more quickly than Sergeant Newton expected. As a result, a collision occurred. It was as unexpected for Sergeant Newton as it was for the plaintiff. To that extent, it was clearly due to an error of judgment made by Sergeant Newton, not reasonably able to be anticipated by the plaintiff but partly caused by the very fast speed the motor cycle was then travelling."
Later his Honour said:
"(Sergeant Newton) had in mind to set up a 'road block'. Of itself, that was a legitimate objective. Of course, care would need to be exercised in the setting up of a road block. It would be gravely negligent to set it up so that an offender had no chance of avoiding collision with it. The objective is to force the offender to stop, not to cause injury to that person. In this case, the objective was not, as I have found, deliberately to ram the plaintiff. In some cases, that action might be warranted. It would not have been in this case. It was legitimate to face the plaintiff with the choice of stopping or risking injury by trying to run the road block. It was unfortunate that Sergeant Newton misjudged the situation and failed to stop his vehicle in time to avoid colliding with the plaintiff's motor cycle. That situation was clearly contributed to by the very excessive speed at which the plaintiff had chosen to proceed."
The accident occurred at about 2.30 p.m. The weather was clear. Haydon Drive is a divided roadway running north and south. The road is level and curves slightly to the east. The eastern carriageway is divided into two lanes. About 250 metres north of the point of collision the eastern carriageway commences to widen so as to form a third lane for vehicles making a right turn at the intersection of Haydon Drive and College Street.
On the day of the accident Sergeant Newton was on mobile traffic duty when he received a radio message that another police vehicle was in pursuit of a motor cycle in the northern suburbs of Canberra. He headed north.
Further radio messages indicated that he and the motor cycle were heading towards the same area. He turned into Haydon Drive and travelled north with the siren and lights on his vehicle operating. Close to the intersection of College Street he saw a motor cycle approximately 600-700 metres away travelling south in Haydon Drive at a speed of at least 150 km/h. He turned through the gap in the centre median strip at the College Street intersection and drove north down the right hand turn lane of the southbound carriageway. In the western-most of the two lanes in the southbound carriageway there was a Ford station wagon travelling south. The motor cycle was accelerating rapidly behind that vehicle and in the same lane. Sergeant Newton turned the police vehicle across the southbound carriageway at an angle of approximately 45 degrees to a position where it was partially into the eastern lane and completely covering the western lane. Sergeant Newton said in his evidence that the police vehicle stopped in that position, the Ford skidded to a halt some distance short of the police vehicle but the motor cycle veered around the left hand rear side of the Ford and collided with the front of the police vehicle. Sergeant Newton's evidence was that he intended to set up a road block and to get out of his vehicle before the motor cycle approached, but had insufficient time to do so.
The learned trial judge found that Sergeant Newton's vehicle was not stopped at the time of the collision but was moving forward. At the same time his Honour rejected the suggestion of the respondent and his pillion passenger that Sergeant Newton had deliberately or recklessly rammed the motor cycle by moving forward from a stationary position as they approached.
On appeal, the appellant did not challenge his Honour's findings of primary fact and in particular the finding that the police vehicle was moving forward slowly at the time of the collision.
The appellant's argument turned on his Honour's reference to "an error of judgment" on the part of Sergeant Newton. It was said that mere error of judgment did not constitute negligence. Reference was made to the discussion of that concept in Whitehouse v. Jordan (1980) 1 All ER 650 (CA) and (1911) 1 All ER 267 (HL).
In our opinion, it is not legitimate to extract from the sequence of events leading up to the collision a period of a few seconds and exculpate Sergeant Newton by characterising what he did in that period as a mere error of judgment. In the context of professional negligence, the fact that conduct is an error of judgment is not conclusive of negligence one way or the other. There can be error of judgment which falls short of the standard to be expected from a reasonably competent practitioner and which therefore constitutes negligence.
However, Sergeant Newton's conduct has to be viewed as a whole, commencing from the moment that he decided to cross over into the southbound carriageway and drive against the approaching traffic, with the aim of creating a road block to stop the respondent, who had already been observed riding south at very high speed. This was an inherently hazardous manoeuvre, notwithstanding that Sergeant Newton was motivated by the proper objective of apprehending a dangerous vehicle. What Sergeant Newton did was likely to cause great danger to other road users, and not just the respondent. The most obvious example is the driver of the Ford, Mrs Anita Brown, who was driving quite lawfully on the roadway but was subjected to a real risk of death or severe injury by the conduct of Sergeant Newton.
Of course, the conduct of the respondent was much worse than that of Sergeant Newton, a fact reflected in his Honour's apportionment of responsibility for the collision. Nevertheless for present purposes it is Sergeant Newton's conduct which has to be looked at and in our opinion the learned judge was correct in finding that he was guilty of negligence.
The appeal will be dismissed with costs, including reserved costs.
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